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C11517— j 


HANDBOOK 

ON  THE  LAW  OF 

PERSONS  AND  DOMESTIC 
RELATIONS 

BY  WALTER  C.  TIFFANY 


THIRD  EDITION 


BY  ROGER  W.  COOLEY,  LL.M. 

AUTHOR  OF  "BRIEFS  ON  THE  LAW  OF  INSURANCE," 

PROFESSOR  OF  LAW,  SCHOOL  OF  JURISPRUDENCE  OF  AMERICAN  UNIVERSITY 
AND  LEGAL  ADVISER  UNITED  STATES  VETERANS'  BUREAU 


ST.  PAUL,  MINN.        ' 

WEST  PUBLISHING  CO. 

1921 


COPYRIGHT,  1896, 
BY 

WEST  PUBLISHING  COMPANY 

COPYRIGHT,  1909, 

BY 
WEST  PUBLISHING  COMPANY 


COPYRIGHT,  1921, 

BY 
WEST  PUBLISHING  COMPANY 

[TIFF.P.&  D.REL.(3o  ED.)] 


T 


c.u 


PREFACE  TO  THIRD  EDITION 


IN  preparing  the  third  edition  of  this  book  the  principal  work  of  the 
editor  has  been  to  incorporate  in  the  notes  the  later  decisions.  Though 
there  have  been  here  and  there  some  slight  alterations  in  the  arrange- 
ment of  the  text,  there  has  been  but  little  departure  ;from  the  plan 
adopted  by  Mr.  Tiffany  in  the  first  edition  and  followed  by  the  present 
editor  in  the  second  edition.  The  most  noteworthy  changes  in  the  text 
are  to  be  found  in  the  chapter  on  Marriage  and  the  chapter  on  Legit- 
imacy and  Adoption  of  Children.  Though  an  important  change  in 
the  relation  of  master  and  servant  has  been  brought  about  by  the 
passage  of  Workmen's  Compensation  Acts  in  a  majority  of  the  states, 
the  scope  of  this  book  does  not  permit  of  any  extended  discussion  of 
those  statutes,  and  the  editor  has  felt  constrained  to  limit  his  treatment 
of  that  phase  of  the  law  to  a  few  paragraphs  added  to  the  section  deal- 
ing with  the  master's  liability  for  injuries  to  the  servant. 

ROGER  W. 

UNITED  STATES  VETERANS'  BUREAU, 

WASHINGTON,  D.  C.,  September  1,  1921. 

(v) 


PREFACE  TO  SECOND  EDITION 


IN  the  thirteen  years  that  have  elapsed  since  the  first  edition  of  this 
book  appeared,  there  have  been  very  few  changes  in  the  law  of  Per- 
sons and  Domestic  Relations.  Even  in  the  law  of  Master  and  Servant 
there  have  been  no  important  departures  from  the  doctrines  laid  down 
many  years  ago.  The  only  branch  of  the  law  in  which  any  marked 
changes  may  be  observed  is  that  branch  which  deals  with  the  prop- 
erty and  contract  rights  of  married  women,  and  these  changes  are 
purely  statutory.  Mr.  Tiffany's  treatment  of  the  general  subject  was 
so  excellent  and  has  called  forth  so  little  criticism  that,  in  the  prep- 
aration of  the  second  edition,  very  few  changes  have  been  made  in 
the  text.  Some  additions  have  been  made  for  the  purpose  of  round- 
ing out  the  subject,  and  in  a  few  instances  there  has  been  an  alteration 
of  the  arrangement.  The  only  material  additions  are  in  that  portion 
of  the  work  dealing  with  the  separate  property  of  married  women  and 
the  addition  of  a  section  relating  to  the  extraterritorial  effect  of  di- 
vorce— a  subject  that  has  come  into  prominence  in  recent  years.  The 
principal  work  of  the  revisor  has  been  to  incorporate  in  the  notes  the 
later  decisions.  ROGER  W.  COOLEY. 

ST.  PAUL,  MINN.,  May  1,  1909. 

(vl) 


PREFACE  TO  FIRST  EDITION 


IN  this  book  the  same  general  plan  has  been  followed  as  that  adopted 
in  the  previous  books  of  the  Hornbook  Series.  A  concise  statement 
of  the  law  precedes  each  subdivision  of  the  subject,  and  is  followed 
and  illustrated  by  a  fuller  treatment  in  the  subsidiary  text. 

The  common  law  of  the  domestic  relations,  particularly  the  law  of 
husband  and  wife,  has  been  to  a  great  extent  modified  by  statutes,  and 
in  some  states  almost  entirely  superseded.  These  statutory  changes 
have  been  by  no  means  uniform,  and  there  are  probably  few  branches 
of  the  law  in  which  there  is  to-day  less  uniformity.  In  a  book  of  this 
scope  it  would  be  impossible  to  give  in  detail  the  law  of  each  state  as 
modified  by  statute.  Since  the  common  law  is  still  in  force  except- 
ing so  far  as  changed  by  statute,  a  knowledge  of  the  common,  as  well 
as  of  the  statute,  law,  is  necessary,  in  order  to  determine  what  the  law 
is  to-day.  The  plan  followed  has  been,  therefore;  to  state  the  com- 
mon-law rule,  and  then  the  substance  of  such  statutes  as  have  been 
generally  adopted,  with  the  interpretation  of  such  enactments  by 
the  courts,  leaving  it  to  the  reader  to  ascertain  what  statutes  are  pe- 
culiar to  his  own  state. 

The  original  scope  of  this  book  was  limited  to  the  subjects  of  Hus- 
band and  Wife,  Parent  and  Child,  Infancy,  and  Guardian  and  Ward; 
but  it  has  been  thought  advisable  to  add  Master  and  Servant,  Persons 
Non  Compotes  Mentis,  and  Aliens,  and  these  additions  are  the  work 
of  Mr.  William  L.  Clark,  Jr.  I  am  further  under  great  obligations  to 
Mr.  Dark  for  valuable  assistance  in  other  parts  of  the  book. 

W.  C.  T. 

MINNEAPOLIS,  MINN.,  Sept.  5,  1896. 

(vii)* 


TABLE  OF  CONTENTS 


PART  I 
HUSBAND  AND  WIFE 


CHAPTER  I 


Section  Page 

1-3.  Definition  of  Marriage   2-6 

4.  Essentials  of  Marriage — Classification  6,  7 

5.  Mutual  Consent 7,  8 

6-10.  Reality  of  Consent 9-17 

7.  Fraud    9-17 

8.  Duress    9-17 

9.  Mistake    9-17 

10.  Effect  of  Fraud,  Duress,  or  Mistake 9-17 

11.  Mental  Capacity  of  the  Parties  17 

12.  Insanity  and  Intoxication   17-20 

13.  Nonage 21-25 

14.  Capacity  of  Parties  Otherwise  than  Mentally 25 

15.  Relationship    20-28 

16.  Physical  Incapacity   29,30 

17.  Civil  Conditions— Race,   etc 30,31 

18.  Prior  Marriage   31-36 

19-21.  Formalities  in  Celebration — Informal  Marriages  36-55 

22-26.  Annulment  and  Avoidance  of  Marriages  55-60 

27.  Power  of  Legislature  to  Validate  Marriage 60, 61 

28.  Presumption  and  Burden  of  Proof   61-65 

29.  Construction  of  Statutes 65-67 

30.  Conflict  of  Laws  .                            67-74 


CHAPTER  II 
RIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  IN  GENERAL 

31.     Right  to  Cohabitation  and  Intercourse  75-78 

32-33.     Restraint  and  Correction  of  Wife   78-80 

34-35.     Support  of  Wife  and  Family   ' 80-88 

36.  Right  to  Determine  Family  Domicile 88,  89 

37.  Crimes  of  Married  Women 90-92 

38.  Crimes  as  between  Husband  and  Wife 93,  94 

39-42.    Torts  of  Married  Women 95-104 

TIFF.P.&  D.REL.  (3i>  ED.)  (ix) 


TABLE  OF  CONTENTS 

Section  Page 

43.  Torts  as  between  Husband  and  Wife 105-107 

44.  Torts  Against  Married  Women   107-112 

45-46.  Actions  for  Enticing,  Harboring,  or  Alienation  of  Affection  113-119 

47.    Action  for  Criminal  Cou versatiou 120-123 


CHAPTER  III 
RIGHTS  IN  PROPERTY  AS  AFFECTED  BY  COVERTURE 

48.  Wife's  Earnings    '. 124-128 

49.  Wife's  Personalty  in  Possession   lus- 1 MI 

50-51.  Wife's  Choses  in  Action  131-137 

52.  Administration  of  Wife's  Estate  138, 139 

53.  Wife's  Chattels  Real  139 

54.  Wife's  Estates  of  Inheritance — Curtesy  140-142 

55.  Wife's  Estates  for  Life  14L'.  143 

56-57.  Modification  of  Common-Law  Rules  143, 144 

58.  Wife's  Rights  in  Husband's  Property — Dower  and  Thirds. .  144, 145 

59.  Estates  by  the  Entirety  146-149 

60.  Community    Property    150-155 


CHAPTER  IV 

CONTRACTS.  CONVEYANCES,  ETC.,  AND  QUASI  CONTRACTUAL 
OBLIGATIONS 

61.  Contracts  of  Wife 156-161 

62,  63.  Wife  as  a  Sole  Trader 162-164 

64-67.  Conveyances,  Sales,  and  Gifts  by  Wife 164-167 

68.  Contracts  of  Husband  , 168 

69,  70.  Contracts  by  Wife  as  Husband's  Agent 168-181 

71.  Husband's  Liability  for  Wife's  Funeral  Expenses 182, 183 

72.  Husband's  Liability  for  Wife's  Antenuptial  Debts   183,184 


CHAPTER  V 
WIFE'S  EQUITABLE  AND  STATUTORY  SEPARATE  ESTATE 

73.  Equitable  Separate  Estate 185-187 

74.  Jus  Disponendi    187,188 

75-77.  Power  to  Charge  by  Contract 189-192 

78.  Statutory  Separate  Estate   192-202 

79.  Jus  Disponendi    202,203 

80-82.  Power  to  Charge  by  Contract 203-213 

CHAPTER  VI 
ANTENUPTIAL  AND  POSTNUPTIAL  SETTLEMENTS 

83.  Antenuptial  Settlements  214-218 

84.  Marriage  as  a  Consideration  218-222 

85.  Reasonableness  of  Provision  for  Wife  . ,  ,  223-225 


TABLE   OF  CONTENTS  XI 

Section  Page 

86.  Settlements  Based  on  Antenuptial  Agreements 225,  226 

87.  Statute  of  Frauds 226-228 

88-90.    Postnuptial  Settlements   ,. . . ,  229-234 

91-92.  As  against  Creditors  and  Purchasers   235-237 

CHAPTER  VII 
SEPARATION  AND  DIVORCE 

93-95.    Agreements  of  Separation   238-241 

96.    Divorce  or  Judicial  Separation 241-243 

97,  98.     Jurisdiction  to  Grant  Divorce 243-247 

99-104.     Grounds   for   Divorce    247-273 

99.  Adultery 247,  248 

100-102.          '  Cruelty    249-256 

103.  Desertion  257-266 

104.  Miscellaneous  Other  Grounds   267-273 

105-109.    Defenses  in  Suits  for  Divorce 273-287 

105.  Connivance    273-275 

106.  Collusion 276-277 

107, 108.  Condonation    277-281 

109.  Recrimination    281-287 

110.  Extraterritorial  Effect  of  Divorce 287-291 

111.  Legislative  Divorce    291, 292 


CHAPTER  VIII 
LEGITIMACY,  ILLEGITIMACY,  AND  ADOPTION 

112-113.     Legitimacy  of  Children  293-304 

114.  Status  of  Illegitimate  Children 304-309 

115.  Adoption  of  Children 310-320 


CHAPTER  IX 
DUTIES  AND  LIABILITIES  OF  PARENTS 

116.  Parent's  Duty  to  Maintain  Child  321-329 

117.  Maintenance  in  Equity — Allowance  Out  of  Child's  Estate..  329-331 

118.  Contracts  by  Child  as  Parent's  Agent    331-333 

119.  Parent's  Duty  to  Protect  Child 333,  334 

120.  Parent's  Duty  to  Educate  Child  334 

121.  Parent's  Liability  for  Child's  Torts 334-338 

122.  Parent's  Liability  for  Child's  Crimes 338 


Xll 


TABLE  OF  CONTENTS 


CHAPTER  X 

RIGHTS  OF  PARENTS  AND  OF  CHILDREN 
Section  Page 

123.  Rights  of  Parents  in  General 339 

124.  Parent's  Right  to  Correct  Child  340-343 

125-126.     Custody  of  Children   343-354 

127.  Parent's  Right  to  Child's  Services  and  Earnings 354-357 

128-131.  Emancipation  of  Children  658-365 

132-134.  Action  by  Parent  for  Injuries  to  Child 365-378 

135-137.  Action  by  Parent  for  Seduction  or  Debauching  of  Daughter  378-384 

138, 139.  Action  by  Parent  for  Abducting,  Enticing,  or  Harboring 

Child    384-386 

140.  Parent's  Rights  in  Child's  Property  386, 387 

141.  Gifts,   Conveyances,   and   Contracts   between   Parent   and 

Child  387-390 

142-143.     Advancements 390,  391 

144.  Duty  of  Child  to  Support  Parents 392 

145.  Domicile  of  Child .... .302.395 


PART    III 

GUARDIAN  AND  WARD 


CHAPTER  XI 
GUARDIANS  DEFINED— SELECTION  AND  APPOINTMENT 

146-147.    In  General   394,395 

148.  Natural  Guardians   395, 396 

149.  Guardians  in   Socage    396,397 

150.  Testamentary  Guardians   398, 399 

151.  Chancery  Guardians   399, 400 

152.  Statute  Guardians   400,401 

153.  Quasi  Guardians,  or  Guardians  by  Estoppel 401 

154.  Guardians  of  Persons  Non  Compotes  Mentis .'....          402 

155.  Guardians  Ad  Litem 402 

156-158.     Selection  and  Appointment  of  Guardians  by  Court 403-406 

159.  Jurisdiction  to  Appoint  Guardian  406,407 

i 

CHAPTER  XII 
RIGHTS,  DUTIES,  AND  LIABILITIES  OF  GUARDIANS 

160.  Guardian's  Right  to  Custody  of  Ward  408,  409 

161.  Guardian's  Right  to  Ward's  Services  409,  410 

162-166.    Maintenance  of  Ward 410-418 


TABLE   OP   CONTENTS 


Xlll 


Section  Page 

163.  Contracts  410-414 

164.  Reimbursement  for  Support   410-414 

165-166.            Use  of  Principal  of  Estate  414-416 

167.     Change  of  Ward's  Domicile  by  Guardian 416-418 

168-179.     Management  of  Ward's  Estate 418-441 

168-169.             Guardianship  as  a  Trust   418-424 

170.  Acts  in  Excess  of  Authority 424, 425 

171.  Degree  of  Care  Required  425-427 

172.  Collection  and  Protection  of  Property — Actions 427-431 

173-174.             Investments    431-435 

175.            Care  of  Real  Estate 436, 437 

176-177.            Sale  of  Real  Estate  437-440 

178.  Sale  of  Personal  Property 440 

179.  Power  to  Execute  Instruments 441 

180.  Foreign  Guardians  441, 442 

181-183.     Inventory  and  Accounts  443-445 

184.  Compensation  of  Guardian    445, 446 

185.  Settlements  Out  of  Court  446-449 

186.  Gifts  from  Ward  to  Guardian   .                      446-449 


CHAPTER  XIII 

TERMINATION   OF   GUARDIANSHIP— ENFORCING   GUARDIAN'S 

LIABILITY 

187.  Termination  of  Guardianship 450-455 

188.  Enforcement  of  Guardian's  Liability  455,456 

189-191.    Guardians'  Bonds  .  .  456-459 


PART    IV 

INFANTS,  PERSONS  NON  COMPOTES  MENTIS, 
AND  ALIENS 


CHAPTER  XIV 

INFANTS 

192.  Infancy  Defined    460,461 

193.  Custody  and  Protection 461-464 

194-198.     Privileges  and  Disabilities  465-471 

194.  In   General    465-471 

195.  Capacity  to  Hold  Office  465-471 

196.  Capacity  to  Make  Will   465-471 

197.  Capacity  to  Sue  and  Defend  465-471 

198.  Infants  as  Witnesses   465-171 

199-217.     Contracts  of  Infants .  471-518 


XIV 


TABLE  OF   CONTENTS 


Section  Page 

199.  In  General    471-479 

200-203.  Liability  for  Necessaries 480-488 

204.  Ratification  and  Disaffirmance  488-491 

205-207.  Time  of  Avoidance   491-495 

208-209.  Who  may  Avoid  Contract 495-497 

210-211.  What  Constitutes  Ratification  497-505 

212.  What  Constitutes  Disaffirmance 505-507 

213.  Extent  of  Ratification  or  DisaflJrmance 507, 508 

214-215.  Return  of  Consideration 508-514 

216-217.  Effect  of  Ratification  or  DisaflBrmance  514-518 

218.    Removal  of  Disabilities   518,519 

219-220.    Actions  in  Tort  by  Infants  520-522 

221-222.     Liability  of  Infants  for  Torts 523-529 

223-224.     Responsibility  of  Infants  for  Crime  529-531 

CHAPTER  XV 
PERSONS  NON  COMPOTES  MENTIS  AND  ALIENS 

225-246.     Persons  Non  Compotes  Mentis 532-560 

225.  In  General    532,  533 

226.  Inquisition    534, 535 

227-228.  Guardianship    535, 536 

229.  Custody  and  Support 536,  537 

230-234.  Contracts  537-546 

231-234.  Ratification  and  Avoidance  of  Contracts 543-546 

235.  Liability  for  Torts  546,  547 

236-239.  Responsibility  for  Crimes  548-552 

240-241.  Capacity  to  Make  a  Will  552-554 

242-246.  Drunken  Persons  554-560 

242-243.  Contracts 554-556 

244.  Liability  for  Torts  * 557 

245.  Responsibility  for  Crimes 557-559 

246.  Capacity  to  Make  a  Will 559-r>fiO 

247-1^2.  Aliens   .                                                                                             .  560-569 


PART  V 
MASTER  AND  SERVANT 


CHAPTER  XVI 

MASTER  AND  SERVANT 

353-255.    The  Relation  Defined 570-573 

256.     Statutory   Regulation    573,574 

257-258.     Creation  of  the  Relation   574-580 

369-26L    Termination  of  the  Relation  .  .  580-595 


TABLE   OF  CONTENTS  XV 

Section  Page 

262-263.    Remedies  for  Breach  of  Contract — Damages 595-599 

264.  In  Equity— Specific  Performance — Injunction  599,600 

265-271.     Rights,  Duties,  and  Liabilities  Inter  Se 600-605 

272-275.  Master's  Liability  for  Injuries  to  Servant 606-642 

276.  Rights  of  Master  against  Third  Persons  642-644 

277.  Rights  of  Servant  against  Third  Persons  644,  645 

278-279.     Master's  Liability  to  Third  Persons 645-655 

280-2iil.     Servant's  Liability  to  Third  Persons 655,  656 


Table  of  Cases  Cited 
(Page  657) 

Index 
(Page  745) 

T 


HANDBOOK 

ON  THE  LAW  OF 

PERSONS  AND  DOMESTIC 
RELATIONS 


THIRD  EDITION 


PART  I 
HUSBAND  AND  WIFE 


CHAPTER  I 
MARRIAGE 

1-3.  Definition  of  Marriage. 

4.  Essentials   of    Marriage — Classification. 

5.  Mutual  Consent. 
6-10.  Reality  of  Consent. 

7.  Fraud/ 

S.  Duress. 

9.  Mistake.  , 

10.  Effect  of  Fraud,  Duress,  or  Mistake. 

11.  Mental    Capacity    of    the    Parties. 

12.  Insanity  and  Intoxication. 

13.  Nonage. 

14.  Capacity  of  Parties  Otherwise  than  Mentally. 

15.  Relationship. 

16.  Physical   Incapacity. 

17.  Civil  Conditions — Race,  etc. 

18.  Prior    Marriage. 

19-21.  Formalities    in    Celebration — Informal    Marriages. 

22-26.  Annulment  and  Avoidance  of  Marriages. 

27.  Power  of  Legislature  to  Validate  Marriage. 

28.  Presumption   and    Burden   of   Proof. 

29.  Construction  of  Statutes. 

30.  Conflict  of  Laws. 
TIFF.P.&  D.REL.(3o  ED.)— 1 


MARRIAGE  (Ch.  1 


DEFINITION  OF  MARRIAGE 

1.  The  term  "marriage"  is  used  in  two  senses: 

(a)  To  designate  the  relation  of  a  man  and  a  woman  legally  unit- 

ed for  life  as  husband  and  wife. 

(b)  To  designate  the  act,  as  distinguished  from  the  executory 

agreement  to  marry,  by  which  the  parties  enter  into  the 
marriage  relation. 

2.  Marriage,  in  the  sense  of  the  relation  of  husband  and  wife,  is  a 

status,  and  not  a  contract. 

3.  Marriage,  in  the  sense  of  the  act  by  which  the  parties  become 

husband  and  wife,  has  been  called  a  contract,  but,  strictly 
speaking,  it  is  not  so;  it  is  the  performance  of  their  con- 
tract to  marry,  resulting  in  a  change  of  status. 

The  term  "marriage"  has  been  used  in  two  senses,  and  this  dou- 
ble use  of  the  term  has  resulted  in  some  confusion.  In  one  sense, 
it  means  the  marriage  relation ;  that  is,  the  status  of  a  man  and 
woman  legally  united  as  husband  and  wife.1  In  another  sense,  it 
means  the  act  or  ceremony  by  which  that  relation  is  assumed,  as 
distinguished  from  the  executory  contract  to  marry.2  It  is  used 
in  the  first  sense  when  it  is  said  that  a  marriage  has  been  dissolved, 
and  in  the  second  sense  when  it  is  said  that  a  marriage  has  been 
celebrated,  or  has  been  proved. 

Marriage  as  a  Contract 

It  is  said  by  many  of  the  text-writers,  and  it  has  often  been  said 
by  the  courts,  that  marriage  is  a  "civil  contract."  *  So,  too,  in  many 

i  Livingston  v.  Livingston,  173  N.  Y.  377,  66  X.  E.  123,  61  L.  R.  A.  800,  93 
Am.  St.  Rep.  600;  State  v.  Bittick,  103  Mo.  183,  15  S.  W.  325,  11  L.  R.  A. 
587,  23  Am.  St.  Rep.  869 ;  People  v.  Case,  241  111.  279,  89  N.  E.  638,  25  L.  R. 
A.  (N.  S.)  578.  The  essential  feature  of  marriage  is  that  the  relation  can  ex- 
ist only  between  one  man  and  one  woman.  Riddle  v.  Riddle,  26  Utah,  26S, 
72  Pac.  1081;  Warrender  v.  Warrender,  2  Clark  &  F.  532. 

=  Noel  v.  Ewing,  9  Ind.  37. 

a  Johnson  v.  Jolmson's  Adm'r,  30  Mo.  72,  77  Am.  Dec.  598 ;  Fornshill  v. 
Murray,  1  Bland  (Mel.)  479,  18  Am.  Dec.  344;  McKinney  v.  Clarke,  2  Swan 
(Tenn.)  ,121,  58  Am.  Dec.  59 ;  Barkshire  v.  State,  7  Ind.  389,  65  Am.  Dec.  738 ; 
Reynolds  v.  United  States,  98  U.  S.  145,  25  L.  Ed.  244;  In  re  Imboden's 
Estate,  111  Mo.  App.  220,  86  S.  W.  263 ;  Nelson  v.  Brown,  164  Ala.  397,  51 
South.  360.  The  contract  of  marriage  being  a  civil  contract,  the  rules  to  be 
applied  thereto  must  be,  to  a  great  extent,  the  same  as  are  applied  to  other 
contracts.  Goad  v.  Coad,  87  Neb.  290,  127  N.  W.  453. 


§§  1-3)  DEFINITION  OF  MARRIAGE  3 

of  the  states  the  Legislature  has  undertaken  to  define  marriage 
as  a  "civil  contract" ;  4  but  this  is  for  the  purpose  of  convey- 
ing the  idea  that  mutual  consent  of  the  parties  is  essential,  or 
that  mutual  consent  alone,  without  formal  celebration,  is  suffi- 
cient to  constitute  marriage,  or  for  the  purpose  of  emphasizing  the 
fact  that  marriage  is  a  civil,  and  not  a  religious,  institution.5  Such 
a  statute  cannot  have  the  effect  of  making  marriage  a  true  contract. 
Though  the  law  defines  marriage  as  a  civil  contract,  it  differs 
from  all  other  contracts  in  its  consequences  to  the  body  politic,  and 
for  that  reason,  in  dealing  with  it,  or  with  the  status  resulting 
therefrom,  the  s.tate  never  stands  indifferent,  but  is  always  a  party 
whose  interest  must  be  taken  into  account.6  Strictly  speaking, 
however,  marriage  is  not  a  contract,  in  either  of  the  senses  in  which 
the  term  is  used.7  The  question  has  arisen  in  a  number  of  cases 
where  the  Legislature  has  undertaken  to  grant  divorces,  or  to 
change  the  rights  of  parties  who  have  married.  It  has  been  con- 
tended that  such  acts  of  the  Legislature  are  unconstitutional,  be- 
cause they  impair  the  obligation  of  contracts ;  but  the  courts  have 
held  that  marriage  is  not  a  contract,  within  the  meaning  of  this 
clause  of  the  Constitution.8  These  decisions  not  only  hold  that  the 


*  See,  for  example,  the  following  statutes:  2  Mills'  Ann.  St.  Colo.  1891, 
§  2988 ;  Burns'  Ann.  St.  Ind.  1914,  §  8357 ;  Gen.  St.  Kan.  1905,  §  4194 ;  Rev. 
Laws  Minn.  1905,  §  3552;  Comp.  St.  Neb.  1905,  §  4273;  Domestic  Relations 
Law  N.  Y.  (Consol.  Laws,  c.  14)  §  10;  St.  Wis.  1898,  §  2328.  In  some  states, 
too,  the  statutes  declare  that  marriage  is  a  personal  relation  arising  out  of  a 
civil  contract.  Civ.  Code  Cal.  1906,  §  55 ;  Civ.  Code  Mont.  1895,  §  50 ;  Comp. 
Laws  N.  D.  1913,  §  4357;  Civ.  Code  S.  D.  1903,  §  34. 

5  See  Fornshill  v.  Murray,  1  Bland  (Md.)  479,  18  Am.  Dec.  344 ;  Wade  v. 
Kalbfleisch,  58  N.  Y.  282,  17  Am.  Rep.  250;  Mathewson  v.  Phoenix  Iron 
Foundry  (C.  C.)  20  Fed.  281;  Reaves  v.  Reaves,  15  Okl.  240,  82  Pac.  490,  2 
L.  R.  A.  (N.  S.)  353. 

o  Willits  v.  Willits,  76  Neb.  228,  107  N.  W.  379,  5  L.  R.  A.  (N.  S.)  767, 14  Ann. 
Cas.  883 ;  Tramwell  v.  Vaughan,  158  Mo.  214,  59  S.  W.  79.  51  L.  R.  A.  854, 
81  Am.  St.  Rep.  302 ;  Coy  v.  Humphreys,  142  Mo.  App.  92,  125  S.  W.  879. 

7  Andrews  v.  Andrews,  188  TI.  S.  14,  30,  23  Sup.  Ct  237,  47  L.  Ed.  366; 
Maynard  v.  Hill,  125  U.  S.  190,  8  Sup.  Ct.  723,  31  L.  Ed.  654,  Cooley  Cas. 
Persons  and  Domestic  Relations,  1;  Sottomayer  v.  De  Barros,  5  Prob.  Div. 
94;  Adams  v.  Palmer,  51  Me.  481;  Ditson  v.  Ditson,  4  R.  I.  87;  Wade  v. 
Kalbfleisch,  58  N.  Y.  282,  17  Am.  Rep.  250;  Moot  v.  Moot,  37  Hun  (N.  Y.) 
288;  Watkins  v.  Watkins,  135  M.ass.  83;  Maguire  v.  Maguire,  7  Dana  (Ky.) 
181 ;  Green  v.  State.  58  Ala.  190,  29  Am.  Rep.  739 ;  Noel  v.  Ewing,  9  Ind. 
37 ;  Mapee  v.  Young,  40  Miss.  164,  90  Am.  Dec.  322.  And  see  Schouler's  Law 
of  Domestic  Relations  (1905)  §  13.  This  question  may  be  a  very  important 
one.  See  post,  pp.  4,  5. 

s  See  the  cases  cited  above  in  note  7. 


4  MARRIAGE  (Ch.  1 

marriage  relation  is  not  a  contract,  but  they  necessarily  hold  that 
the  ceremony  of  marriage  is  not  a  contract,  for  a  statute  that  would 
impair  the  obligations  of  the  former  would  necessarily  impair  the 
obligations  of  the  latter.  That  neither  marriage,  nor  the  marriage 
relation,  is  a  contract,  would  seem  obvious  when  the  differences 
between  them  are  noticed.  In  a  contract  the  parties  fix  its  terms, 
but  marriage  imposes  its  own  terms.  A  contract  may  be  terminat- 
ed by  mutual  consent,  but  the  marriage  relation  cannot  be  so  ter- 
minated. An  agreement  to  marry  is  necessary  to  a  valid  marriage, 
but  when  that  agreement  is  carried  out,  by  marrying,  a  relation  is 
created  between  the  parties  which  they  cannot  change.9  Unlike  a 
contract,  also,  the  marriage  relation  cannot  necessarily  be  terminat- 
ed, even  though  one  of  the  parties  becomes  incapable  of  performing 
his  part;  nor  can  it  be  terminated  by  an  infant  of  marriageable 
age.10  In  these  and  many  other  respects  it  is  irreconcilable  with 
the  ideas  of  contract. 

Some  confusion  has  arisen  from  confounding  the  contract  to  mar- 
ry with  the  execution  or  performance  of  that  contract,  and  with  the 
relation  that  results  from  such  performance.  Where  parties  mutu- 
ally agree  to  marry  at  some  future  time,  there  is  a  contract  to  mar- 
ry. When  they  marry — that  is,  when  they  express  their  mutual 
consent  with  the  formalities  required  by  law,  or  when  they  infor- 
mally assume  the  relation — they  do  not  contract,  but  they  perform 
their  contract  to  marry,  just  as  a  conveyance  of  land,  and  payment 
therefor,  is  a  performance  of  a  previous  contract  to  convey,  on  the 
one  side,  and  to  pay,  on  the  other.  When  the  contract  to  marry  is 
performed  by  marriage,  a  relation  or  status,  not  a  contract,  results. 
Agreement  is  necessary  to  a  valid  marriage,  and  it  is  for  this  rea- 
son, no  doubt,  that  writers  and  judges  have  spoken  of  it  as  a  con- 
tract. But  it  must  be  remembered  that  something  more  than  agree- 
ment is  necessary  to  constitute  a  contract.  The  agreement  must  di- 
rectly, and  not  remotely,  contemplate  and  create  a  personal  obliga- 
tion, an  obligation  in  personam,  capable  of  enforcement  by  the 
courts  in  an  action  by  one  of  the  parties  against  the  other.  Mar- 
riage neither  directly  contemplates  nor  creates  such  an  obligation.11 
It  is  otherwise,  of  course,  with  an  agreement  to  marry.  These  con- 
siderations make  it  clear  that  marriage  cannot,  in  either  sense .of 

»  Andrews  Y.  Andrews,  188  U.  S.  14,  30,  23  Sup.  CL  237,  47  It.  Ed.  366. 

10  Post,  p.  22. 

11  Sec  Anson,  Cont.  3;    Clark,  Cent.  12, 


§§  1-3)  DEFINITION  OF  MARRIAGE  5 

the  term,  be  regarded  as  a  contract.     The  marriage  relation  is  a 
status,  and  marriage  is  a  change  of  status.12 

"Marriage  has  been  well  said  to  be  something  more  than  a  con- 
tract, either  religious  or  civil ;  to  be  an  institution."  18  "Marriage 
is  a  state  or  relation,  depending  for  its  existence  upon  the  fact  of 
parties  competent  to  contract  the  relation,  and  their  legal  volun- 
tary, present  consent  to  do  so,  with  such  formalities  as  the  law  of 
the  place  requires  for  its  valid  solemnization."  14  "When  the  con- 
tracting parties  have  entered  into  the  married  state,  they  have  not 
so  much  entered  into  a  contract  as  into  a  new  relation,  the  rights, 
duties,  and  obligations  of  which  rest,  not  upon  their  agreement,  but 
upon  the  general  law  of  the  state,  statutory  or  common,  which  de- 
fines and  prescribes  those  rights,  duties,  and  obligations.  They  are 
of  law,  not  of  contract.  It  was  a  contract  that  the  relation  should 
be  established,  but,  being  established,  the  power  of  the  parties,  as 
to  its  extent  or  duration,  is  at  an  end.  Their  rights  under  it  are 
determined  by  the  will  of  the  sovereign,  as  evidenced  by  law.  They 
can  neither  be  modified  nor  changed  by  any  agreement  of  par- 
ties." 15  "Marriage  is  not  a  contract,  but  one  of  the  domestic  rela- 
tions. In  strictness,  though  formed  by  contract,  it  signifies  the  re- 
lation of  husband  and  wife,  deriving  both  its  rights  and  duties  from 
a  source  higher  than  any  contract  of  which  the  parties  are  capable, 
and,  as  to  these,  uncontrollable  by  any  contract  which  they  can 
make.  When  formed,  this  relation  is  no  more  a  contract  than 
'fatherhood'  or  'sonship'  is  a  contract."  ie 

12  Linebaugh  v.  Linebaugh,  137  Cal.  26,  69  Pac.  616. 

is  Hyde  v.  Hyde,  L.  R.  1  Prob.  &  Div.  130,  133 ;  Coe  v.  Hill,  201  Mass.  15,  86 
N.  E.  949 ;  Bacon  v.  Bacon,  43  Ind.  App.  218,  86  N.  E.  1030 ;  Gortia  v.  Rueda, 
35  Phil.  Rep.  1053. 

i*  Story,  Confl.  Laws,  §  112a.  And  see  Mitchell  v.  Mitchell,  63  Misc.  Rep. 
580,  117  N.  Y.  Supp.  671 ;  Knost  v.  Knost,  229  Mo.  170,  129  S.  W.  665,  49  L.  R. 
A.  (N.  S.)  627;  Grigsby  v.  Reib,  105  Tex.  597, 153  S.  W.  1124,  I>.  R.  A.  1915E,  1, 
Ann.  Cas.  1915C,  1011,  affirming  judgment  (Tex.  Civ.  App.)  139  S.  W.  1027. 

IB  Adams  v.  Palmer,  51  Me,  481,  483;  Maynard  v.  Hill,  125  TJ.  S.  190,  8 
Sup.  Ct.  723,  31  L.  Ed.  654,  Cooley  Cas.  Persons  and  Domestic  Relations,  1 ; 
Hilton  v.  Roylance,  25  Utah,  129,  69  Pac.  660,  58  L.  R.  A.  723,  95  Am.  St.  Rep. 
821.  In  Christian  nations  marriage  is  not  treated  as  a  mere  contract  to  be 
suspended  or  dissolved,  at  pleasure,  but  rather  as  a  status  based  on  public 
necessity,  and  controlled  by  law  for  the  benefit  of  society  at  large.  People  v. 
Case,  241  111.  279,  89  N.  E.  638,  25  L.  R.  A.  (N.  S.)  578.  A  valid  marriage  can- 
not be  contracted  when  either  party  is  privileged  to  annul  it  by  asserting  a 
legal  right;  it  being  essential  that  the  marriage  be  absolute.  Jordan  v.  Mis- 
souri &  Kansas  Telephone  Co.,  136  Mo.  App.  192,  116  S.  W.  432. 

16  Ditson  v.  Ditson,  4  R.  I.  87,  101. 


6  MARRIAGE  (Cll.  1 

Power  to  Regulate  and  Control 

Marriage  is  a  social  institution  or  status,  in  which,  because  the 
foundations  of  the  family  and  the  domestic  relations  rest  upon  it, 
the  commonwealth  has  a  deep  interest.17  It  is  therefore  within  the 
legitimate  exercise  of  the  legislative  power  of  the  state  to  declare, 
as  to  its  citizens,  what  shall  be  recognized  as  the  marriage  status.18 
The  state  has  the  right  to  control  and  regulate  by  reasonable  laws 
the  marriage  relationship  of  its  citizens,19  and  the  wishes  and  de- 
sires, or  even  the  immediate  welfare,  of  the  individual,  must  yreld 
to  the  public  policy  of  the  state.20 

ESSENTIALS  OF  MARRIAGE— CLASSIFICATION 

4.  The  essentials  of  a  valid  marriage  may  be  classified  and  treated 
as  follows: 

(a)  Mutual  consent,  or  agreement,  under  which  head  may  be 

treated 

(1)  Intention  generally. 

(2)  Reality  of  consent,  or  consent  as   affected  by  fraud, 

duress,  or  error. 

(b)  Parties  capable  of  intelligent  consent,  under  which  head  may 

be  treated 

(1)  Insanity  and  intoxication. 

(2)  Nonage. 

(c)  Parties  otherwise  capable  of  entering  into  the  marriage  rela- 

tion, under  which  may  be  treated  the  effect  of 

(1)  Relationship  between  the  parties— consanguinity  or  af- 

finity. 

(2)  Physical  incapacity. 

(3)  Civil  conditions. 

(4)  Prior  marriage. 

"Coe  v.  Hill,  201  Mass.  15,  86  N.  E.  949:  Lauer  v.  Banning,  152  Iowa,  90, 
131  N.  W.  783. 

i«  Schumacher  v.  Great  Northern  Ry.  Co.,  23  N.  D.  231,  136  N.  W.  85;  Co- 
hen v.  Cohen,  3  Boyce  (Del.)  361,  84  Atl.  122 ;  Blakeslee  v.  Blakeslee,  41  Nev. 
235,  168  Pac.  950 ;  In  re  Gregorson's  Estate,  160  Cal.  21,  116  Pac.  60,  L.  R.  A. 
1916C,  697,  Ann.  Cas.  1912D,  1124 ;  Caras  v.  Hendrix,  62  Fla.  446,  57  South. 
345. 

«  Maynard  v.  Hill,  125  U.  S.  190,  8  Sup.  Ct.  723,  31  L.  Ed.  654,  Cooley  Cas. 
Persons  and  Domestic  Relations,  1 ;  Andrews  v.  Andrews,  188  U.  S.  14,  30,  23 
Sup.  Ct  237,  47  L.  Ed.  366;  Kitzman  v.  Kitzman,  167  Wis.  308,  166  N.  W. 
789. 

20  Kitzman  v.  Kitzman,  167  Wis.  308,  166  N.  W.  789. 


§  5)  MUTUAL  CONSENT  7 

(d)  Formalities  in  the  celebration  of  marriage,  under  which  head 
may  be  treated  informal  marriages. 

While  marriage,  in  the  sense  of  the  act  or  ceremony  by  which  the 
relation  of  husband  and  wife  is  assumed,  is  no  more  a  real  contract 
than  is  the  relation  itself,  still  mutual  consent  or  agreement  is  nec- 
essary, and  this  fact  clothes  marriage  with  a  semblance  of  contract. 
Marriage  and  contract  have  the  element  of  agreement  in  common, 
and  anything  that  would  exclude  this  element  in  contract  would 
also  exclude  it  in  marriage.  There  are  many  principles,  therefore, 
of  the  law  of  contract,  that  apply  also  in  the  case  of  marriage.  The 
necessity  for  mutual  consent,  including  the  question  of  reality  of 
consent,  or  consent  as  affected  by  fraud,  duress,  or  mistake,  gives 
rise  to  rules  which  are  also  applicable  to  the  formation  of  contract. 
So,  also,  with  the  question  of  insanity  or  intoxication.  But  mar- 
riage also  involves  other  essentials  which  have  no  place  in  the  law 
of  contract.  Thus  the  parties  must  be  physically  capable;  they 
must  not  be  related  to  each  other  within  the  degrees  within  which 
marriage'  is  prohibited ;  there  must  be  no  impediment  of  civil  con- 
dition; and  the  parties  must  not  be  bound  by  a  prior  marriage. 
In  some  jurisdictions,  also,  certain  formalities  are  prescribed  by 
law,  to  be  observed  in  the  celebration  of  marriage ;  and,  if  such  is 
the  intent  of  the  law,  these  formalities  must  be  complied  with. 
Contracts  by  an  infant  are  voidable,  but  an  infant  of  a  certain  age 
may  enter  into  a  marriage  that  will  be  absolutely  binding  on  him. 
It  will  be  seen,  therefore,  that  the  essentials  of  marriage  differ 
widely  from  the  essentials  of  contract. 

MUTUAL  CONSENT 

5.  To  constitute  a  valid  marriage,  there  must  be  agreement  or  mu- 
tual consent  to  enter  into  the  marriage  relation. 

One  of  the  elements  common  to  both  contract  and  marriage  is  the 
agreement  or  mutual  consent  of  the  parties.  Though  the  marriage 
relation  is  an  institution  over  which,  when  it  has  been  entered  into, 
the  parties  have  little  control,  yet  it  lies  entirely  with  them  whether 
they  shall  assume  that  relation.  Their  agreement  or  mutual  con- 
sent, therefore,  is  essential,21  and  anything  that  goes  to  show  that 

aiMcClurg  v.  Terry,  21  N.  J.  Eq.  225;  Clark  v.  Field,  13  Vt.  460,  465; 
Roszel  v.  Roszel,  73  Mich.  133,  40  N.  W.  858,  16  Am.  St.  Rep.  569;  State  v. 


8  MARRIAGE  (Ch.  1 

there  was  no  real  agreement,  such  as  a  lack  of  intent  to  assume  the 
marriage  relation,"  shows  that  there  was  no  valid  marriage.  Thus 
in  McClurg  v.  Terry,"  it  appeared  that  a  man  and  woman  having 
capacity  to  enter  into  the  marriage  relation  went  through  the  for- 
malities required  by  law,  and  were  pronounced  man  and  wife  by 
a  person  who  was  authorized  to  perform  the  marriage  ceremony. 
The  parties,  however,  took  this  step  merely  as  a  joke — not  intend- 
ing it  to  be  a  marriage — and  it  was  therefore  held  that  there  was  no 
valid  marriage. 

Worthingham,  23  Minn.  528;  Bundle  v.  Pegram,  49  Miss.  751;  Tartt  v.  Ne- 
gus, 127  Ala.  301,  28  South.  713 ;  Kutch  v.  Kutch,  88  Neb.  114,  129  N.  W.  169 ; 
Corigsby  v.  Relb,  105  Tex.  507,  153  S.  W.  1124,  L.  R.  A.  1915E,  1,  Ann.  Cas. 
1915C.  1011,  affirming  (Tex.  Civ.  App.)  139  S.  W.  1027;  Le  Suer  v.  Le  Suer, 
ii1:'  Minn.  407,  142  N.  W.  503.  The  consent  need  not  be  expressed  in  any 
especial  manner  or  by  any  prescribed  form  of  words.  University  of  Michigan 
v.  McGuckln,  62  Neb.  4S9,  87  N.  W.  180,  37  I*  R.  A.  917,  Cooley  Cas.  Per- 
sons and  Domestic  Relations,  6,  aflirmed  on  rehearing  64  Neb.  300,  89  N.  W. 
778,  57  L.  R.  A.  917,  Cooley  Cas.  Persons  and  Domestic  Relations,  6.  Evi- 
dence that  a  woman  joined  her  hands  with  that  of  a  man  before  a  justice 
of  the  peace,  stood  mute  during  the  marriage  ceremony  which  the  justice 
performed,  and  did  not  in  any  way  dissent  when  the  justice  declared  them 
man  and  wife,  does  not  justify  an  inference  that  the  woman  refused  her  as- 
sent  to  the  marriage.  In  re  Torrence's  Estate,  47  Pa.  Super.  Ct.  509.  Consent 
may  be  implied  from  the  acts  of  the  parties.  Hilton  v.  Roylance,  25  Utah, 
129,  69  Pac.  660,  58  L.  R.  A.  723,  95  Am.  St.  Rep.  821.  But  see  Hooper  v. 
McCaffery,  83  111.  App.  341,  where  it  was  said  that  subsequent  cohabitation 
while  it  will  give  character  to  words  used  or  acts  done,  will  not  supply  lack 
of  consent. 

«  University  of  Michigan  v.  McGuckin,  62  Neb.  489,  87  N.  W.  180,  57  L. 
R.  A.  917,  Cooley  Cas.  Persons  and  Domestic  Relations,  6,  affirmed  on  rehear- 
ing 64  Neb.  300,  89  N.  W.  778,  57  L.  R.  A.  917,  Cooley  Cas.  Persons  and  Do- 
mestic Relations,  6;  Eaton  v.  Eaton,  66  Neb.  676,  92  N.  W.  995,  60  L.  R.  A. 
605.  1  Ann.  Cas.  199;  Dorgeloh  v.  Murtha,  92  Misc.  Rep.  279,  156  N.  Y.  Supp. 
181.  The  intent  may  be  gathered  from  the  circumstances  attending  the  con- 
sent or  agreement,  and  mere  mental  reservations  and  the  secret  intent  of  one 
of  the  parties  not  to  consider  the  marriage  binding  are  ineffectual  Imboden  v. 
St.  Louis  Union  Trust  Co.,  Ill  Mo.  App.  220,  86  S.  W.  263.  If  one  party  to  a 
marriage  induces'  the  other  to  believe,  in  good  faith,  that  the  contract  is 
made  and  is  binding,  the  law  will  hold  the  party  taking  such  advantage  to 
the  full  terms  of  the  agreement.  Cond  v.  Coad,  87  Neb.  290,  127  N.  W.  455. 
The  statement  of  a  man  at  the  time  of  his  marriage  that  ha  would  not  live 
with  the  woman,  did  not  render  the  marriage  void.  Wimbrough  v.  Wim- 
brough.  125  Md.  610.  94  Atl.  168,  Ann.  Cas.  1916E,  920. 

2»  21  N.  J.  Eq.  225.  And  compare  Barclay  v.  Commonwealth,  116  Ky.  275, 
76  S.  W.  4,  and  Lee  v.  State,  44  Tex.  Cr.  B.  354,  72  S.  W.  1005,  61  L.  R.  A. 
904,  where,  to  the  knowledge  and  intent  of  the  man,  the  marriage  was  a 
sham.  But  the  mere  fact  that  the  parties  to  a  marriage  did  not  intend 
that  the  marital  relation  should  be  permanent,  the  marriage  having  been 
legally  performed,  does  not  affect  its  validity.  Donohue  v.  Donohue,  159  Mo. 
App.  610,  141  S.  W.  465. 


§§  6-10)  REALITY  OP  CONSENT  9 

REALITY  OF  CONSENT— FRAUD,  DURESS,  AND  MIS- 
TAKE 

6.  The  mutual  consent  which  is  essential  to  a  valid  marriage  must 

be  real.    There  may  be  no  real  consent,  because  of 

(a)  Fraud. 

(b)  Duress. 

(c)  Mistake. 

7.  FRAUD — Fraud,  to  affect  the  validity  of  the  marriage,  must  re- 

late to  some  fact  essential  to  the  marital  relation.  A  mar- 
riage is  not  invalidated  by  false  representations  as  to  rank, 
fortune,  character,  or  health ;  nor  by  false  representations 
as  to  chastity,  except  where  the  woman  was  pregnant  by 
another  man  at  the  time  of  the  marriage,  and  the  husband 
was  ignorant  of  the  fact,  and  had  not  himself  had  inter- 
course with  her.  Deceit  may  invalidate  a  marriage,  if  it 
prevented  the  other  party  from  understanding  its  nature, 
as  in  cases  where  advantage  is  taken  by  one  party  of  the 
extreme  youth  or  age  of  the  other. 

8.  DURESS — A  marriage  is  voidable  if  either  party  acted  under 

duress. 

9.  MISTAKE — Mistake  as  to  the  nature  and  legal  consequences  of 

the  ceremony,  or  as  to  the  identity  of  the  other  party,  ren- 
ders the  marriage  voidable;  but  a  marriage  is  not  invali- 
dated by  mistake  as  to  the  rank,  fortune,  character,  or 
health  of  one  of  the  parties. 

10.  EFFECT  OF  FRAUD,  DURESS,  OR  MISTAKE— A  mar- 

riage is  voidable  on  the  ground  of  fraud,  duress,  or  mis- 
take, and  not  absolutely  void ;  but  it  is  voidable  by  act  of 
the  party,  without  the  necessity  for  a  decree  of  nullity. 
It  can  be  avoided  only  by  the  party  deceived,  coerced,  or 
mistaken. 
Fraud 

As  in  the  case  of  contracts  generally,  in  order  to  avoid  a  mar- 
riage for  fraud,  the  false  representation  or  concealment  must  affect 
some  material  fact  essential  to  the  marriage  relation.2*  Thus  it 

2*  Crane  v.  Crane,  62  N.  J.  Eq.  21,  49  Atl.  734;  Beach  v.  Beach,  160  Iowa, 
346,  141  N.  W.  921,  46  L.  R.  A.  (N.  S.)  98,  Ann.  Gas.  1915D,  216;  Moore  v. 


10  MARRIAGE  (Ch.  1 

has  been  held  that  entering  into  the  marriage  contract  with  the  in- 
tent to  abandon  the  spouse  is  a  fraud  justifying  annulment.25  So, 
too,  it  has  been  held  that  concealment  of  a  prior  subsisting  mar- 
riage is  a  fraud  justifying  annulment,29  and  a  false  representation 
or  concealment  as  to  facts  rendering  the  assumption  of  the  mar- 
riage relation  dangerous  to  health  or  life  will  furnish  ground  for 
avoidance.27  Since  the  false  representation  or  concealment  must 
affect  some  material  fact  essential  to  the  marital  relation,  it  is  the 
general  rule  that  false  representations  as  to  rank,  fortune,  charac- 
ter, or  health  do  not  invalidate  a  marriage.28  Whether  this  is  be- 

Moore,  94  Misc.  Rep.  370,  157  N.  Y.  Supp.  819 ;  Thompson  v.  Thompson  (Tex. 
Civ.  App.)  202  S.  W.  175 ;  Roth  v.  Roth,  97  Misc.  Rep.  136,  161  N.  Y.  Supp. 
99. 

2B  Anders  v.  Anders,  224  Mass.  438,  113  N.  E.  203,  L,  R.  A.  1916E,  273 ;  Moore 
v.  Moore.  94  Misc.  Rep.  370,  157  N.  Y.  Snpp.  819.  But  compare  Beckermeister 
v.  Beckermeister  (Sup.)  170  N.  Y.  Supp.  22.  And  see  Johnson  v.  Johnson,  176 
Ala.  449,  58  South.  418,  39  L.  R,  A.  (N.  S.)  518,  Ann.  Gas.  1915A,  828,  holding 
that  the  fact  that  a  husband  in  contracting  a  marriage  did  so  to  prevent  his 
wife  testifying  against  him  in  a  prosecution  for  seducing  her,  and  with  the 
intention  of  abandoning  her,  does  not  constitute  such  fraud  as  renders  the 
marriage  void.  A  marriage  will  not  be  avoided  on  the  ground  of  conceal- 
ment of  the  wife's  physical  incapacity  to  bear  children,  when  the  facts  so 
far  as  known  to  her  were  stated  and  the  prospective  husband  was  put  in  posi- 
tion to  acquire  exact  information.  Wendel  v.  Wendel,  30  App.  Div.  447,  52 
N.  Y.  Supp.  72.  See,  also,  Schroter  v.  Schroter,  56  Misc.  Rep.  69,  106  N.  Y. 
Supp.  22. 

2«  Batty  v.  Greene,  206  Mass.  561,  92  N.  E.  715,  138  Am.  St.  Rep.  407;  Weill 
v.  Weill,  104  Masc.  Rep.  561,  172  N.  Y.  Supp.  589.  And  see  Roth  v.  Roth,  97 
Misc.  Rep.  136,  161  N.  Y.  Supp.  99.  But  mere  concealment  of  the  fact  of  a 
previous  marriage  is  not  ground  to  avoid  the  marriage.  Boehs  v.  Hanger,  69 
N.  J.  Eq.  10,  59  Atl.  904 ;  Trask  v.  Trask,  114  Me.  60,  95  Atl.  352 ;  Davis  v. 
Whitlock,  90  S.  C.  233,  73  S.  E.  171,  Ann.  Cas.  1913D,  538;  Donnelly  v. 
Strong,  175  Mass.  157,  55  N.  E.  892. 

27  Lyon  v.  Lyon.  230  111.  366,  82  N.  E.  850,  13  L.  R.  A.  (N.  S.)  996,  12  Ann. 
Cas.  25,  Cooley  Cas.  Persons  and  Domestic  Relations,  11. 

28  Ewing  v.  Wheatley,  2  Hagg.  Ecc.  175;    Wakefield  v.  Mackay,  1  Hagg. 
Consist.  394;   Wier  v.  Still,  31  Iowa,  107;  Carris  v.  Can-is,  24  N.  J.  Eq.  516; 
Reynolds  v.  Reynolds,  3  Allen  (Mass.)  605;    Leavitt  v.  Leavitt,  13  Mich.  456; 
Long  v.  Long,  77  N.  C.  304,  24  Am.  Rep.  449;    Scroggins  v.  Scroggins,  11 
N.  C.  535 ;    Lewis  v.  Lewis,  44  Minn.  124,  46  N.  W.  323,  9  L.  R.  A.  505,  20 
Am.  St.  Rep.  559,  Cooley  Cas.  Persons  and  Domestic  Relations,  17;    Libman 
v.  Libman,  102  Misc.  Rep.  443,  169  N.  Y.  Supp.  900;    Gumbiner  v.  Gumbiner, 
72  Misc.  Rep.  211,  131  N.  Y.  Supp.  85;    Williamson  v.  Williamson,  34  App. 
D.  C.  536,  30  L.  R,  A.  (N.  S.)  301 ;   Fisk  v.  Fisk,  12  Misc.  Rep.  466,  34  N.  Y. 
Supp.  33.     Contra,  Keyes  v.  Keyes,  6  Misc.  Rep.  355,  26  N.  Y.   Supp.  910. 
In  the  last  case  a  man  had  represented  himself  to  be  honest  and  industrious, 
whereas  he  was  in  fact  a  professional  thief,  whose  picture  was  In  the  rogue's 
gallery ;    and  the  marriage  was  annulled  on  the  ground  of  fraud.    This  case, 
however,  is  against  the  weight  of  authority.     See  Wier  v.  Still,  and  other 


§§  6-10)  REALITY   OF  CONSENT  11 

cause  these  qualities  are  not  essentials  of  marriage ; 29  or  because 
the  law  presumes  the  exercise  of  due  caution  in  a  matter  of  such  im- 
portance, and  that  these  conditions  are  waived  by  marrying;30  or 
because  of  grounds  of  public  policy — the  cases  are  almost  uniform 
in  holding  that  fraudulent  representations  in  these  particulars  can- 
not be  relied  upon  to  defeat  an  otherwise  valid  marriage.  So  far  as 
matters  of  health  are  concerned,  the  general  rule  has,  however,  been 
modified  and  the  doctrine  is  recognized  that  the  concealment  of  the 
existence  of  a  loathsome  or  dangerous  disease — dangerous  to  the 
other  spouse  and  to  the  offspring  of  the  union,  if  such  there  should 
be — is  a  fraud  rendering  the  marriage  voidable.31 

The  cases  go  so  far  as  to  hold  that  false  representations  as  to 
previous  chastity  are  not  ground  for  annulling  a  marriage,  even 
though  the  woman  may  have  been  a  common  prostitute.32  When, 

cases  cited  above.  But  in  Di  Lorenzo  v.  Di  Lorenzo,  174  N.  Y.  467,  67  N.  E.  63, 
63  L.  R.  A.  92,  95  Am.  St.  Rep.  609,  where  the  woman,  having  given  birth  to  a 
child,  represented  to  plaintiff  xthat  he  was  the  father,  thus  inducing  him  to  con- 
sent to  marriage  to  order  to  legitimate  the  child,  it  was  held  that  this  was 
a  fraud,  affording  ground  for  annulment.  In  Lewis  v.  Lewis,  44  Minn.  124, 
46  N.  W.  323,  9  L.  R.  A.  505,  20  Am.  St.  Rep.  559,  Cooley  Cas.  Persons  and 
Domestic  Relations,  17,  it  was  held  that  a  marriage  is  not  voidable  for  fraud 
for  concealment  of  the  fact  that  the  wife  was  at  the  time  a  kleptomaniac. 
That  a  husband  concealed  that  he  was  afflicted  with  a  taint  of  hereditary  in- 
sanity is  no  ground  for  annulling  the  marriage  for  fraud.  Allen  v.  Allen, 

85  N.  J.  Eq.  55,  95  Atl.  363. 

2»  1  Eraser,  Dom.  Rel.  230;    1  Kent,  Comm.  77. 

301  Bish.  Mar.,  Div.  &  Sep.  §  460;  Wakefield  v.  Mackay,  1  Hagg.  Consist. 
394. 

si  Smith  v.  Smith,  171  Mass.  404,  50  N.  E,  933,  41  L.  R.  A.  800,  68  Am.  St. 
Rep.  440,  where  the  husband  was  afflicted  with  syphilis  in  an  incurable  form. 
To  the  same  effect,  see  Svenson  v.  Svenson,  178  N.  T.  54,  70  N.  E.  120 ; 
Jordan  v.  Missouri  &  K.  Tel.  Co.,  136  Mo.  App.  192,  116  S.  W.  432;  Crane 
v.  Crane.  62  N.  J.  Eq.  21,  49  Atl.  734 ;  Sobol  v.  Sobol,  88  Misc.  Rep.  277,  150 

N.  Y.  Supp.  248  (tuberculosis) ;  C v.  C ,  158  Wis.  301,  148  N.  W.  865, 

5  A.  L.  R.  1013  (gonorrhea) ;  Anonymous,  21  Misc.  Rep.  765,  49  N.  Y.  Supp. 
331.  But  see  Vondal  v.  Vondal,  175  Mass.  383,  56  N.  E.  586,  78  Am.  St.  Rei>. 
502,  where  the  disease  had  not  reached  a  contagious  stage  at  the  time  of 
marriage,  and  the  marriage  had  been  consummated.  The  fact  that  one  of  the 
parties  to  a  marriage  believes  he  or  she  is  afflicted  with  hereditary  insan- 
ity, and  does  not  communicate  the  belief  to  the  other  party,  is  no  ground 
for  annulment  of  the  marriage,  where  there  is  no  justification  for  such  be- 
lief, though  insanity  did  occur  six  years  after  the  marriage.  Allen  v.  Allen, 

86  N.  J.  Eq.  441,  99  Atl.  309,  affirming  decree  85  N.  J.  Eq.  55,  95  Atl.  363. 

32  Hedden  v.  Hedden,  21  N.  J.  Eq.  61 ;  Farr  v.  Farr,  2  MacArthur  (D.  C.) 
35:  Reynolds  v.  Reynolds,  3  Allen  (Mass.)  605;  Leavitt  v.  Leavitt,  13  Mich. 
452;  Wier  v.  Still,  31  Iowa,  107;  Donnelly  v.  Strong,  175  Mass.  157,  55  N. 
E.  892;  Shrady  v.  Logan,  17  Misc.  Rep.  329,  40  N.  Y.  Supp.  1010.  But  the 
contrary  rule  was  recognized  in  Entsminger  v.  Entsminger,  99  Kan.  362,  161 


12  MARRIAGE  (Ch.  1 

however,  the  woman  is  pregnant  by  another  man  at  the  time  of  the 
marriage,  the  marriage  is  voidable.88  The  courts  have  placed  their 
decision,  where  the  case  has  arisen,  on  the  ground  that  the  ability 
to  bear  the  husband  a  child  of  his  loins  is  an  essential  of  marriage, 
and  that  a  pregnant  woman  is  not  able  to  carry  out  the  agreement 
in  this  essential  particular.84  In  order  that  the  husband  may  be 
entitled  to  avoid  the  marriage  on  the  ground  of  the  wife's  preg- 
nancy by  another  man  at  the  time  of  the  marriage,  he  must  have 
been  ignorant  of  the  fact ;  for  otherwise  there  is  no  fraud,  nor  fail- 
ure to  consent.85  Express  denials  by  the  woman,  or  overt  acts  of 
concealment,  are  not  necessary.  It  is  sufficient  if  her  conduct  was 
such  that  a  reasonably  cautious  person  might  be  misled.86  If  the 
husband  had  himself  had  antenuptial  connection  with  the  wife,  he 
must  be  regarded  as  having  been  put  upon  his  guard  as  to  her  chas- 
tity, and  he  will  not  be  permitted  to  say  that  he  was  ignorant  of 
her  pregnancy  by  another  man  at  the  time  of  the  marriage.87 

Pac.  607;  Douischke  v.  Douischke,  138  App.  Div.  454,  122  N.  T.  Supp.  S92. 
In  Hull  v.  Hull,  191  111.  App.  307,  it  was  held  that  false  representations 
by  a  man  before  marriage,  made  to  his  intended  wife,  as  to  his  not  having 
had  intercourse  with  other  women,  are  not  ground  for  annulment.  See,  also, 
Glean  v.  Glean,  70  App.  Div.  576,  75  N.  Y.  Supp.  622. 

83  Scott  v.  Shufeldt,  5  Paige  (N.  Y.)  43;  Reynolds  v.  Reynolds,  3  Allen 
(Mass.)  605;  Donovan  v.  Donovan,  9  Allen  (Mass.)  140;  Baker  v.  Baker,  13 
Cal.  87;  Montgomery  v.  Montgomery,  3  Barb.  Ch.  (N.  Y.)  132;  Fontana  v. 
Fontana.  77  Misc.  Rep.  28,  135  N.  Y.  Supp.  220;  Allen's  Appeal,  99  Pa.  196, 
44  Ain.  Rep.  101 ;  Carris  v.  Carris,  24  N.  J.  Eq.  516 ;  Sinclair  v.  Sinclair,  57 
N.  J.  Eq.  222,  40  Atl.  679 ;  Ritter  v.  Ritter,  5  Blackf.  (Ind.)  81 ;  Frith  v.  Frith, 
18  Ga.  273,  63  Am.  Dec.  289;  Gondouin  v.  Gondouin,  14  Cal.  App.  285,  111 
Pac.  756 ;  Harrison  v.  Harrison,  94  Mich.  559,  54  N.  W.  275,  34  Am.  St.  Rep. 
364.  See  Long  v.  Tx>ng,  77  N.  C.  304,  24  Am.  Rep.  449. 

«*  In  1  Bish.  Mar.,  Div.  &  Sep.  §  486,  the  author  has  pointed  out  that  this 
is  inconsistent  with  the  position  taken  by  the  courts  in  considering  the  dis- 
ability of  impotence,  where  the  law  is  settled  that  copula,  not  fruitfulness, 
Is  the  test,  and  that  barrenness  is  no  ground  for  nullity.  Post,  p.  29. 

s  s  FOSS  v.  Foss,  12  Allen  (Mass.)  26;  Crehore  v.  Crehore,  97  Mass.  330,  93 
Am.  Dec.  98;  Butler  v.  Eschleman,  18  111.  44;  Berry  v.  Bakeman,  44  Me. 
164.  And  see  Steele  v.  Steele,  96  Ky.  382,  29  S.  W.  17. 

8«  Donovan  v.  Donovan,  9  Allen  (Mass.)  140. 

3T  Seilheimer  v.  Seilheimer,  40  N.  J.  Eq.  412,  2  Atl.  376;  Crehore  v.  Cre- 
hore, 97  Mass.  330,  93  Am.  Dec.  98 ;  Foss  v.  Foss,  12  Allen  (Mass.)  26 ;  Franke 
T.  Franke,  3  Cal.  Unrep.  656,  31  Pac.  571,  18  L.  R.  A.  375;  Safford  v.  Saf- 
ford,  224  Mass.  392,  113  N.  E.  181,  L.  R.  A.  1916F,  526;  Lyman  v.  Lyman, 
«0  Conn.  399,  97  Atl.  312,  L.  R,  A.  1916E,  643;  Tait  v.  Tait,  3  Misc.  Rep. 
218,  23  N.  Y.  Supp.  597.  But  see  Moss  v.  Moss,  24  N.  C.  56.  It  was  held  in 
Gondouin  v.  Gondouin,  14  Cal.  App.  285,  111  Pac.  756,  that  a  man  who  has  been 
having  illicit  Intercourse  with  a  woman  prior  to  his  marriage  with  her  cannot 
have  the  marriage  annulled  on  the  ground  that  it  was  brought  about  by  the  wo- 


§§  6-10)  REALITY   OF  CONSENT  13 

When  consent  is  obtained  by  deceit,  under  such  circumstances 
that  the  nature  of  the  marriage  is  not  understood,  the  marriage  may 
be  avoided.  Such  cases  arise  where  one  of  the  parties  takes  advan- 
tage of  the  extreme  youth  or  age  of  the  other.88 

Duress 

A  marriage  under  duress  or  compulsion  is  without  the  consent 
necessary  to  its  validity,  and  may  be  avoided.39  It  has,  indeed, 
been  said  that  the  compulsion,  to  avoid  the  marriage,  must  cause 
fear  of  bodily  harm.40  So  it  has  been  said  that  duress  which  will 
invalidate  a  marriage  must  be  fear  of  that  degree  of  violence, 
threatened  or  actually  inflicted,  sufficient  to  overcome  the  mind  and 
will  of  a  person  of  ordinary  firmness.41  Probably  this  statement  is 

man  falsely  representing  that  she  was  pregnant  by  him.  On  the  other  hand,  in 
Gard  v.  Gard,  204  Mich.  255,  169  N.  W.  908,  it  was  held  that  a  marriage  pro- 
cured by  the  wife's  false  representations  that  she  was  pregnant  by  the  hus- 
band, when  she  was  pregnant  by,  another  man,  to  whose  child  she  later  gave 
birth,  will  be  annulled  at  the  husband's  suit,  though  the  wife  informed  him 
during  acquaintance  she  had  had  intercourse  with  another. 

&8  Harford  v.  Morris,  2  Hagg.  Consist.  423;  Browning  v.  Reane,  2  Phillim. 
Ecc.  70 ;  Rex  v.  Wakefleld,  2  Lewin,  Cr.  Gas.  279 ;  Hull  v.  Hull,  5  Eng.  Law 
&  Eq.  589;  Clark  v.  Field,  13  Vt.  460;  Gillett  v.  Gillett,  78  Mich.  184,  43  N. 
W.  1101;  Lyndon  v.  Lyndon,  69  111.  43;  Robertson  v.  Cole,  12  Tex.  356;  Moot 
v.  Moot,  37  Hun  (N.  Y.)  288.  In  Gillett  v.  Gillett,  supra,  it  appeared  that 
complainant,  a  man  of  75,  blind,  more  or  less  deaf,  and  otherwise  broken, 
who  had  just  received  a  liberal  pension,  with  a  large  amount  of  arrears, 
was  induced,  by  putting  him  under  the  influence  of  liquors,  and  probably 
of  drugs,  to  marry  defendant,  a  woman  less  than  half  his  age,  who  had  a 
young  child,  and  with  whom  he  was  very  slightly  acquainted,  and  for  whom 
he  entertained  no  attachment.  It  was  held  that  the  marriage  was  properly 
annulled.  But  see  Kutch  v.  Kutch,  88  Neb.  114,  129  N.  W.  169. 

as  Scott  v.  Sebright,  12  Prob.  Div.  21;  Marsh  v.  Whittington,  88  Miss.  400, 
40  South.  326;  Shoro  v.  Shoro,  60  Vt.  268,  14  Atl.  177,  6  Am.  St.  Rep.  118, 
Cooley  Gas.  Persons  and  Domestic  Relations,  15;  Willard  v.  Willard,  6 
Baxt.  (Tenn.)  297,  32  Am.  Rep.  529;  Bassett  v.  Bassett,  9  Bush  (Ky.)  696; 
Houle  v.  Houle,  300  Misc.  Rep.  28,  166  N.  Y.  Supp.  67;  Quealy  v.  Waldron, 
126  La.  258,  52  South.  479,  27  L.  R.  A.  (N.  S.)  803,  20  Ann.  Gas.  1374 ;  Ander- 
son v.  Anderson,  74  Hun,  56,  26  N.  Y.  Supp.  492.  That  a  marriage  will  not 
be  annulled  on  the  ground  of  duress,  unless  it  is  shown  that  the  other  par- 
ty caused  the  duress,  or  knowingly  used  it  or  availed  himself  of  it  to  procure 
the  marriage,  see  Sherman  v.  Sherman  (Com.  PL)  20  N.  Y.  Supp.  414.  But 
see  Marks  v.  Grume,  29  S.  W.  436,  16  Ky.  Law  Rep.  707.  A  marriage  was  in- 
valid where  the  consent  of  the  husband  was  not  freely  given,  but  was  the 
result  of  a  threat  by  the  bride's  father  to  kill  him  unless  he  married  her. 
Fowler  v.  Fowler,  131  La.  1088,  60  South.  694.  To  the  same  effect,  see  Sim- 
mons v.  Stevens,  132  La.  675,  61  South.  734. 

*<>Ayl.  Par.  362;  Stevenson  v.  Stevenson,  7  Phila.  (Pa.)  386;  Quealy  v. 
Waldron,  126  La.  258,  52  South.  479,  27  L.  R.  A.  (N.  S.)  803,  20  Ann.  Gas. 
1374. 

*i  Mar  re  v.  Marre,  184  Mo.  App.  198,  168  S.  W.  636. 


14  MARRIAGE  (Ch.  1 

too  broad  and  should  not  be  taken  literally.  The  better  opinion  is 
that,  if  either  party  is  in  a  state  of  mental  incompetency  to  resist 
pressure  improperly  brought  to  bear,  there  is  no  legal  consent.42 
In  Scott  v.  Sebright 48  the  duress  consisted  in  threatening  one  in 
financial  distress  with  exposure,  and  the  court  held  that,  inasmuch 
as  this  resulted  in  depriving  the  party  of  her  free  will,  there  was 
no  real  consent,  and  the  marriage  was  annulled. 

On  the  other  hand,  it  has  been  held  that  a  threat  that,  unless  the 
plaintiff  consented  to  marry  the  defendant,  he  would  involve  her 
as  an  accomplice  with  a  fugitive  from  justice  after  conviction  of  a 
crime,  was  not  in  itself  sufficient  to  avoid  the  marriage.44  The 
duress  must  clearly  have  dominated  throughout  the  transaction,  so 
as  to  disable  the  one  influenced  from  acting  as  a  free  agent.45 
Where  a  man  is  illegally  or  maliciously,  and  without  probable 
cause,  arrested  for  bastardy  or  seduction,  and  marries  the  complain- 
ant to  avoid  imprisonment,  it  is  held  that  he  acts  under  such  duress 
as  will  avoid  the  marriage ;  and  the  same  is  true  in  other  cases  of 
illegal  arrest.46  If,  however,  an  arrest,  or  threatened  arrest,  for 
bastardy  or  seduction,  is  valid,  a  marriage  to  escape  arrest  or  pun- 
ishment is  not  under  duress,  for  there  can  be  no  duress  in  compell- 
ing a  man  to  perform  a  legal  duty.47  Threats  or  force  which  do  not 
coerce  are  not  duress.48 


42  Scott  v.  Sebright,  12  Proh.  Dlv.  21;  Rex  v.  Wakefleld,  39  Am.  Reg.  316; 
Harford  v.  Morris,  "2  Hagg.  Consist.  423;  Willard  v.  Willard,  6  Baxt.  (Tenn.) 
•J07,  32  Am.  Rep.  529;  Shepherd  v.  Shepherd,  174  Ky.  615,  192  S.  W.  658; 
Lyndon  v.  Lyndon,  69  111.  43. 

4»32  Prob.  Div.  21. 

44  Nicholson  v.  Nicholson,  174  Cal.  391,  163  Pac.  219. 

45  Beeks  v.  Beeks,  66  Fla.  256,  63  South.  444. 

4«  Reg.  v.  Orgill,  9  Car.  &  P.  80 :  Shoro  v.  Shoro,  60  Vt.  268,  14  Atl.  177, 
6  Am.  St.  Rep.  118,  Cooley  Cas.  Persons  and  Domestic  Relations,  15;  Soule 
v.  Bonney,  37  Me.  128 ;  Bassett  v.  Bassett,  9  Bush  (Ky.)  696 ;  Barton's  Lessee 
v.  Morris'  Heirs,  15  Ohio,  408. 

47  Jackson  v.  Wlnne,  7  Wend.  fN.  Y.)  47,  22  Am.  Dec.  563;   Honnett  v.  Hon- 
nett,  33  Ark.  156,  34  Am.  Rep.  39 ;    Marvin  v.  Marvin,  52  Ark.  425,  12  S.  W. 
875,  20  Am.  St.  Rep.  191;    Blankenraiester  v.  Blankenmiester,  106  Mo.  App. 
390.  80  S.  W.  706 ;    Sickles  v.  Carson.  26  N.  J.  Eq.  440 ;   State  v.  English,  101 
S.  C.  304,  85  S.  E.  721,  L.  R.  A.  1915F,  977;   Thome  v.  Farrar,  57  Wash.  441, 
107  Pac.  347,  27  L.  R.  A.  (N.  S.)  3S5,  135  Am,  St.  Rep.  995;  Copeland  v.  Cope- 
land  (Va.)  21  S.  E.  241;    Williams  v.  State,  44  Ala.  24;    State  v.  Davis,  79 
N.  C.  603 ;   Merrell  v.  Moore,  47  Tex.  Civ.  App.  200,  104  S.  W.  514 ;   Johns  v. 
Johns.  44  Tex.  40 ;    Medrano  v.  State,  32  Tex.  Cr.  R,  214,  22  S.  W.  684,  40 
Am.  St.  Rep.  775;    Pray  v.  Pray,  128  La.  1037,  55  South.  666;    Shepherd  v. 

48  See  note  48  on  following  page. 


§§  6-10)  REALITY  OF   CONSENT  15 

Mistake 

As  false  and  fraudulent  representations  as  to  rank,  fortune,  char- 
acter, or  health  are  no  ground  for  annulling-  a  marriage  that  is  oth- 
erwise valid,40  it  is  clear  that  a  mistake  as  to  these  particulars  is 
not  sufficient  to  invalidate  it.  These  are  not  essentials  of  the  mar- 
riage. If,  however,  a  mistake  is  of  such  a  nature  as  to  prevent  the 
party  from  understanding  the  nature  of  the  marriage,  it  must  nee- 
Shepherd,  174  Ky.  615,  192  S.  W.  658;  Wimbrough  v.  Wimbrough,  125  Md. 
619,  94  Atl.  168,  Ann.  Gas.  1916E,  920;  Lacoste  v.  Guidroz,  47  La.  Ann.  295, 
16  South.  836.  In  Marvin  v.  Marvin,  supra,  it  was  held  that  marriage  can- 
not be  avoided  on  the  ground  of  duress  where  a  man  is  lawfully  arrested  on 
process  for  seduction,  and  marries  the  woman  to  procure  his  discharge,  and 
that  the  fact  that  he  subsequently  discovers  that  he  could  not  have  been  con- 
victed will  not  alter  the  case,  if  the  prosecution  was  on  probable  cause,  and 
not  from  malice  merely.  But  abuse  of  lawful  process  may  constitute  duress. 
Thus,  where  an  inexperienced  boy  of  IS  was  arrested  on  the  charge  of  bas- 
tardy, and  while  under  arrest  was  advised  by  the  justice  to  marry  the  female 
making  th'e  charge,  and,  notwithstanding  his  assertions  of  innocence,  was 
threatened  with  a  conviction  and  confinement  in  the  penitentiary,  and  the 
boy  married  the  woman  to  avoid  such  punishment,  the  marriage  was  annulled 
on  the  ground  of  duress.  Smith  v.  Smith,  51  .Mich.  607,  17  N.  W.  76. 

48  In  a  suit  in  England  by  a  woman  to  annul  a  marriage,  it  appeared  that 
the  parties  were  Americans  and  cousins.  Respondent  had  made  an  offer  of 
marriage  to  the  petitioner,  which  she  had  refused.  On  a  Sunday,  he  being 
then  under  21  and  she  24  years  of  age,  under  the  pretense  of  going  to  an 
afternoon  service  at  a  church,  he  took  her  to  another  church,  and  outside 
the  church  said  to  her  suddenly,  "You  must  come  into  the  church  and  marry 
me,  or  I  will  blow  my  brains  out,  and  you  will  be  responsible."  She  testi- 
fied that  she  was  so  alarmed  that  she  did  not  know  what  she  was  doing,  and 
went  into  the  church,  where  the  ceremony  of  marriage  was  performed,  and 
she  signed  the  register.  Respondent  had  previously  obtained  a  license,  on  a 
false  declaration  as  to  his  own  age  and  as  to  the  petitioner's  residence,  and 
had  made  arrangements  at  the  church  for  the  marriage  to  be  performed 
that  day.  The  vicar  who  performed  the  ceremony  stated  that  the  petitioner 
went  through  it  without  showing  any  signs  of  unwillingness,  repeated  the  re- 
sponses in  an  audible'  tone,  and  signed  the  register  in  a  clear,  firm  hand. 
The  marriage  was  never  consummated,  and  the  parties  never  saw  each  other 
afterwards,  though  they  corresponded,  but  always  on  the  footing  of  cousins, 
and  not  as  husband  and  wife.  Petitioner  never  told  her  parents  or  friends 
of  the  marriage,  because,  as  she  said,  she  did  not  regard  it  as  binding.  Re- 
spondent, who  did  not  appear  in  the  suit,  admitted  that  he  had  only  mar- 
ried petitioner  for  her  money,  and  that  he  did  not  care  for  her.  There  was 
evidence  that  the  petitioner  was  of  a  weak,  impressionable  character,  with 
not  much  power  of  resistance  to  a  stronger  will,  but  that  she  was  not  par- 
ticularly disposed  to  fall  into  a  "hysterical  state,"  in  the  medical  sense  of 
the  term.  It  was  held  that  the  facts  were  insunicient  to  rebut  the  presump- 
tion of  consent,  that  the  marriage  was  valid,  and  that  the  suit  must  be  dis- 
missed. Cooper  v.  Crane,  [1891]  Prob.  Div.  369. 

49  Ante,  p.  10.  As  to  error,  see  2  Kent,  Comm.  77 ;  Ben  ton  v.  Benton,  1 
Day  (Conn.)  Ill;  Fielding's  Case,  Burke,  Cel.  Trials,  63,  78. 


16  MARRIAGE  (Ch.  1 

essarily  avoid  it ;  for  there  can,  in  such  a  case,  be  no  mutual  con- 
sent. If  a  person  should  intend  to  marry  one  person,  for  instance, 
and  by  mistake  should  marry  another,  there  would  be  no  consent, 
and  therefore  no  valid  marriage.80 

There  is  no  mistake  in  identity,  which  will  afford  ground  to  avoid 
the  marriage,  if  there  has  merely  been  an  assumption  of  a  false 
name  without  false  personation.81 

Void  or  Voidable — Ratification 

Marriages  induced  by  fraud  or  duress,  or  entered  into  under  mis- 
take are  sometimes  said  to  be  void,  and  not  merely  voidable;  but 
this  is  not  true.  They  are  not  absolutely  void,  but  voidable  at  the 
option  of  the  party  deceived,  coerced,  or  mistaken.82  If  that  party 
chooses  to  avoid  the  marriage,  he  or  she  may  do  so,  and  thereby 
render  it  void  ab  initio ;  and  no  suit  for  nullity  is  necessary.  The 
other  party  clearly  cannot  avoid  the  marriage,  for  he  would  not  be 
permitted  to  set  up  his  own  fraud  or  wrong  to  defeat  it,  and  he 
could  not  set  up  a  mistake  on  the  part  of  the  other  party,  of  which 
the  latter  did  not  complain.88  If  the  party  coerced  or  deceived — 
and  it  would  seem  true,  also,  in  the  case  of  mistake — recognizes  the 
marriage  as  valid,  and  cohabits  with  the  other  party,  after  discov- 
ery of  the  fraud,  or  when  no  longer  under  the  duress,  the  marriage 
cannot  afterwards  be  avoided.84  Fraud,  duress,  or  mistake  cannot 

so  Meyer  v.  Meyer,  7  Ohio  Dec.  627;  Reg.  v.  Millis,  10  Clark  &  F.  534, 
785;  Rex  v.  Inhabitants  of  Burton-upon-Trent,  3  Maule  &  S.  537;  Stayte  v. 
Farquharson,  3  Addams,  Ecc.  2S2.  See,  also,  Delpit  v.  Young,  51  La.  Ann. 
923.  25  South.  547.  holding  that  error  as  to  the  chastity  of  a  wife  before  her 
marriage  is  not  a  "mistake  in  the  person,"  within  Rev.  Civ.  Code,  arts.  91, 

no. 

si  Meyer  v.  Meyer,  7  Ohio  Dec.  627. 

82  Jordan  v.  Missouri  &  K.  Tel.  Co.,  136  Mo.  App.  192,  116  S.  W.  432; 
Bostick  v.  State,  1  Ala.  App.  255,  55  South.  260. 

"  Farley  v.  Farley,  94  Ala.  501,  10  South.  646,  33  Am.  St.  Rep.  141. 

»«  Schwartz  v.  Schwartz.  29  111.  App.  516;  Steimer  v.  Steimer,  37  Misc. 
Rep.  26,  74  N.  Y.  Supp.  714;  Leavitt  v.  Leavitt,  13  Mich.  452;  Millar  v. 
Millar,  175  Cal.  797,  167  Pac.  394,  L.  R.  A.  1918B,  415,  Ann.  Cas.  1918E,  184 ; 
Koehler  v.  Koehler,  137  Ark.  302,  209  S.  W.  283;  Hampstead  v.  Plaistow, 
49  N.  H.  84;  Shepherd  v.  Shepherd,  174  Ky.  615,  192  S.  W.  658;  Sher- 
man v.  Sherman,  174  Iowa,  145,  156  N.  W.  301;  Boutterie  r.  Demarest, 
120  La.  278,  52  South.  492,  27  L.  R,  A.  (N.  S.)  805;  Scott  v.  Shufeldt, 
5  Paige  (X.  Y.)  43.  In  Schwartz  v.  Schwartz,  supra,  a  man  sought  to 
avoid  a  suit  by  a  woman  for  separate  maintenance  by  showing  that  his 
marriage  was  procured  by  duress  of  imprisonment  for  seduction  under  promise 
of  marriage.  It  was  held  that  his  claim  could  not  be  sustained,  even  though 
the  arrest  was  unlawful,  where  the  evidence  showed  that  after  the  marriage 
he  approved  and  ratified  it,  and  never  denied  its  validity  until  the  suit  for 


§  12)  MENTAL  CAPACITY  OF  THE  PARTIES  IT 

be  set  up  by  third  persons  to  def.eat  the  marriage.56  These  consid- 
erations are  sufficient  to  show  that  the  marriage  is  not  void,  but 
voidable  only.  No  decree  of  nullity,  however,  is  necessary,  unless 
required  by  statute.  The  marriage,  as  already  stated,  is  sufficiently 
avoided  if  it  is  repudiated  on  discovery  of  the  fraud  or  mistake,  or 
when  released  from  the  duress. 

MENTAL  CAPACITY  OF  THE  PARTIES 

11.  To  constitute  a  valid  marriage,  the  parties  must  be  capable  of 

intelligently  consenting.  They  may  be  incapable  of  intelli- 
gent consent  by  reason  of 

(a)  Insanity  or  intoxication. 

(b)  Nonage. 

SAME— INSANITY  AND  INTOXICATION 

12.  A  marriage  is  void,  in  the  absence  of  ,a  statute,  if  either  party, 

by  reason  of  defect  or  disease  of  the  mind,  was  incapable 
of  intelligently  consenting.  The  parties  must  have  been 
mentally  capable  of  understanding  the  nature  and  conse- 
quences of  marriage.  The  same  rule  applies  where  a  party 
is  drunk  at  the  time  of  the  marriage.  In  most  states,  by 
statute,  such  marriages  are  declared  voidable,  and  not 
void;  and  in  some  states  they  are  held  voidable  only,  in- 
dependently of  any  statute. 

separate  maintenance  was  brought.  There  is  no  ratification  of  a  marriage 
invalidated  by  duress  by  subsequent  cohabitation  submitted  to  while  the  duress 
is  still  operative.  Avakian  v.  Avakian,  69  N.  J.  Eq.  89,  60  Atl.  521.  To  the 
same  effect  is  Fowler  v.  Fowler,  131  La.  1088,  60  South.  694.  A  woman's 
fraudulent  representations  as  to  her  reputation  and  virtue,  inducing  mar- 
riage, are  not  waived  nor  condoned  by  cohabitation,  where  she  continues  her 
misconduct,  over  husband's  objection.  Entsminger  v.  Entsminger,  99  Kan. 
362,  161  Pac.  607.  That  defendant  permitted  his  wife  to  live  in  the  same 
house  with  him  for  17  months  is  not  a  confirmation  of  the  marriage,  so  as 
to  bar  annulment  for  her  fraud,  consisting  of  her  infection  with  chronic 

gonorrhea.    C v.  C ,  158  Wis.  301,  148  N.  W.  865,  5  A.  L,  R.  1013. 

55  McKinney  v.  Clarke,  2  Swan  (Tenn.)  321,  58  Am.  Dec.  59;  Farley  v.  Far- 
ley, 94  Ala.  501,  10  South.  646,  33  Am.  St.  Rep.  141.  "If  a  marriage  may  be 
annulled  for  fraud,  it  must  be  such  a  fraud  as  operates  upon  one  or  the 
other  of  the  immediate  parties  to  the  contract,  and  has  the  legal  effect  of 
vitiating  the  contract  between  the  parties  ab  initio.  But,  as  respects  stran- 
gers, fraud  cannot  be  predicated  of  a  contract  which  the  immediate  parties 
thereto  may  lawfully  enter  into,  which  no  principle  of  municipal  law  for- 
bids, or  can  restrain  the  consummation  of."  McKinney  v.  Clarke,  supra. 
TIFF.P.&  D.REL.(3o  ED.)— 2 


18  MARRIAGE  (Ch.  1 

Insanity 

Where  by  reason  of  defect  of  the  mind,  as  in  case  of  idiocy,  of 
disease  of  the  mind,  as  in  case  of  lunacy,  a  person  has  not  sufficient 
mental  capacity  to  give  an  intelligent  consent,  he  or  she  cannot 
enter  into  a  valid  marriage,  for  there  can  be  no  real  consent.58, 
And  this  is  true,  though  the  insanity  be  only  temporary,  the  person 
generally  being  sane.07  What  degree  of  mental  defect  or  disease 
is  sufficient  to  invalidate  a  marriage  is  a  question  as  to  which  the 
authorities  are  somewhat  at  variance.  The  rule  generally  laid  down 
is  that  the  party  must  be  able  to  understand  the  nature  of  mar- 
riage, and  its  consequences.58  This  makes  the  test  whether  there 
is  sufficient  mental  capacity  to  give  an  intelligent  consent.  "If  the 
incapacity  be  such  that  the  party  be  incapable  of  understanding  the 
nature  of  the  contract  itself,  and  incapable,  from  mental  imbecility, 
to  take  care  of  his  or  her  own  person  or  property,  such  person 
cannot  dispose  of  his  or  her  own  person  and  property  by  the  matri- 
monial contract,  any  more  than  by  any  other  contract."  59  Mere 
mental  weakness,  if  it  does  not  deprive  the  party  of  capacity  to 
understand  and  appreciate  the  consequences  of  the  step  he  is  taking, 
does  not  affect  the  validity  of  a  marriage.60  Nor  is  its  validity  af- 

5«  Foster  v.  Means,  Speer,  Eq.  (S.  C.)  569.  42  Am.  Dec.  332;  Hagenson  v. 
Hagenson,  258  111.  197,  101  N.  E.  606;  Dunphy  v.  Dunphy,  161  Cal.  87,  118 
Pac.  445;  Holland  v.  Riggs.  53  Tex.  Civ.  App.  367,  116  S.  W.  167;  True  v. 
Ranney,  21  N.  H.  52,  53  Am.  Dec.  164 ;  Inhabitants  of  Middleborough  v.  Inhab- 
itants of  Rochester,  12  Mass.  364,  and  cases  hereafter  cited.  The  common- 
law  rule  that  a.  marriage  contracted  by  an  insane  person  is  void  for  want 
of  assent  has  been  changed  by  Code  Miss.  1906,  §  1669,  par.  "8,  providing  that 
insanity  or  idiocy  is  a  ground  for  divorce,  if  the  complaining  party  did  not 
know  of  the  infirmity.  Wilson  v.  Wilson,  104  Miss.  347,  61  South.  453.  And 
see  In  re  Jansa's  Estate,  169  Wis.  220,  171  N.  W.  947,  construing  the  Wis- 
consin statute  declaring  epileptics  incapable  of  contracting  marriage. 

or  Parker  v.  Parker,  6  Eng.  Ecc.  R,  165. 

os  Browning  v.  Reane,  2  Phillim.  Ecc.  70;  Chapline  v.  Stone,  77  Mo.  App. 
523 ;  True  v.  Ranney,  21  N.  H.  52,  53  Am.  Dec.  164 ;  Inhabitants  of  Middle- 
borough  v.  Inhabitants  of  Rochester,  12  Mass.  363 ;  Anonymous,  4  Pick. 
(Mass.)  32 ;  Inhabitants  of  Atkinson  v.  Inhabitants  of  Medford,  46  Me.  510 ; 
Ward  v.  Dulaney,  23  Miss.  410 ;  Coleman  v.  Coleman,  85  Or.  99,  166  Pac.  47 ; 
Wau.u'liop  v.  Waughop,  92  Wash.  69,  143  Pac.  444;  Adams  v.  Scott,  93  Neb. 
537,  141  N.  W.  148;  Dunphy  v.  Dunphy,  161  Cal.  380,  119  Pac.  512,  38  L.  R. 
A.  (N.  S.)  818,  Ann.  Cas.  1913B,  1230;  Cole  v.  Cole,  5  Sneed  (Tenn.)  57,  70 
Am.  Dec.  275;  McElroy's  Case,  6  Watts  &  S.  (Pa.)  451;  Lewis  v.  Lewis,  44 
Minn.  124,  46  N.  W.  323,  9  L.  R.  A.  505,  20  Am.  St.  Rep.  559,  Cooley  Cas. 
Persons  and  Domestic  Relations,  17 ;  Pyott  v.  Pyott,  191  111.  280,  61  N.  E.  88. 
affirming  90  111.  App.  210. 

59  Browning  v.  Reane,  2  Phillim.  Ecc.  70. 

«<>2  Kent,  Comm.  76;  Browning  v.  Reane,  2  Phillim.  Ecc.  70;  Portsmouth 
r.  Portsmouth,  1  Iliagg.  Ecc.  355 ;  Kern  v.  Kern,  51  N.  J.  Eq.  574,  26  Atl.  837 ; 


§  12)  MENTAL  CAPACITY  OF   THE   PARTIES  19 

fected  by  insanity  or  insane  delusions  or  impulses  on  other  sub- 
jects.61 As  was  said  in  a  case  in  which  it  was  sought  to  annul  a 
marriage  on  the  ground  that  the  woman  was  a  kleptomaniac:  "It 
was  not  proved,  nor  is  it  found  by  the  court,  that  she  was  not  oth- 
erwise sane,  or  that  her  mind  was  so  affected  by  this  peculiar  pro- 
pensity as  to  be  incapable  of  understanding  or  assenting  to  the  mar- 
riage contract.  Whether  the  subjection  of  the  will  to  some  vice  or 
uncontrollable  impulse,  appetite,  passion,  or  propensity  be  attrib- 
uted to  disease,  and  be  considered  a  species  of  insanity,  or  not,  yet, 
as  long  as  the  understanding  and  reason  remain  so  far  unaffected 
and  unclouded  that  the  afflicted  person  is  cognizant  of  the  nature 
and  obligations  of  a  contract  entered  into  by  him  or  her  with  an- 
other, the  case  is  not  one  authorizing  a  decree  avoiding  the  con- 
tract. Any  other  rule  would  open  the  floor  to  great  abuses."  62 

The  insanity  must  exist  at  the  time  of  the  marriage,  to  avoid  it, 
neither  prior  nor  subsequent  insanity  being  sufficient.63  Nor  are 
both  prior  and  subsequent  insanity  sufficient,  if  the  marriage  took 
place  in  a  lucid  interval.64  As  said  by  the  Illinois  court :  "It  would 
be  a  harsh  rule  indeed  that  would  permit  a  man  who  has  married 
a  woman  who  later  in  life  becomes  insane  to  put  her  away  on  ac- 
count of  her  inexpressibly  sad  misfortune.  It  is  to  the  credit  of 
our  common  humanity  that  there  cannot  be  found,  in  all  the  range 
of  judicial  proceedings,  a  single  case  that  holds  that  insanity  is  or 
could  be  a  cause  for  divorce."  65 

Aldrich  v.  Steen,  71  Neb.  33,  98  N.  W.  445,  judgment  modified  on  rehearing 
71  Neb.  33,  100  N.  W.  311;  Adams  v.  Scott,  93  Neb.  537,  141  N.  W.  148. 
That  complainant,  a  girl  of  14,  "knew  nothing  of  the  heavy  responsibilities 
incident  to  the  marital  status,"  and  "was  young,  inexperienced,  unlearned, 
and  was  persuaded  and  induced  to  enter  into  said  marriage  by  defendant 
without  reflection  or  consideration  on  her  part,"  does  not  show  her  mental 
incapacity.  Greeni  v.  Green  (Fla.)  SO  South.  739. 

ei2  Kent,  Comm.  76;   Portsmouth  v.  Portsmouth,  1  Hagg.  Ecc.  355. 

02  Lewis  v.  Lewis,  44  Minn.  124,  46  N.  W.  323,  9  L.  R.  A.  505,  20  Am.  St. 
Rep.  559,  Cooley  Gas.  Persons  and  Domestic  Relations,  17. 

es  Turner  v.  Meyers,  1  Hagg.  Consist.  414;  Parneil  v.  Parnell,  2  Hagg. 
Consist.  169;  Banker  v.  Banker,  63  N.  Y.  409;  Nonnemacher  v.  Nonnemach- 
er,  159  Pa.  634,  28  Atl.  439 ;  Smith  v.  Smith,  47  Miss.  211 ;  Ryals  v.  Ryals, 
130  La.  244,  57  South.  904;  Henderson  v.  Ressor,  141  Mo.  App.  540,  126  S. 
W.  203 ;  Hamaker  v.  Hamaker,  18  111.  137,  65  Am.  Dec.  705 ;  Lloyd  v.  Lloyd, 
66  111.  87;  Wertz  v.  Wertz,  43  Iowa,  534;  Baker  v.  Baker,  82  Ind.  146. 

64  Turner  v.  Meyers,  1  Hagg.  Consist  414 ;  Parker  v.  Parker,  6  Eng.  Ecc. 
R.  165;  Smith  v.  Smith,  47  Miss.  211;  Banker  v.  Banker,  63  N.  Y.  409; 
Nonnemacher  v.  Nonnemacher,  159  Pa.  634,  28  Atl.  439. 

e  s  Lloyd  v.  Lloyd,  66  111.  87.  In  a  very  few  states  it  has  been  made  a 
ground  for  divorce. 


20  MARRIAGE  (Ch.  1 

Intoxication 

Intoxication  of  a  person  at  the  time  of  his  or  her  marriage  avoids 
it  for  the  same  reason  that  insanity  avoids  it — because  there  is  no 
real  consent.88  The  intoxication,  however,  must  be  so  excessive  as 
to  prevent  the  party  from  giving  an  intelligent  consent.  If  he  un- 
derstands the  nature  and  consequences  of  his  act,  the  fact  that  he 
is  under  the  influence  of  liquor  will  not  avail  to  avoid  the  mar- 
riage.eT 

Void  or  Voidable — Ratification 

Some  of  the  authorities  hold  that  insanity  renders  a  marriage 
voidable,  and  not  void ;  that  a  person  on  regaining  his  reason,  even 
temporarily,  may  affirm  a  marriage  celebrated  while  he  was  insane, 
and  thereby  render  it  absolutely  binding.88  And  there  are  authori- 
ties to  the  effect  that,  if  the  other  party  knew  he  was  marrying  an 
insane  person,  he  cannot  avoid  the  marriage.69  This  is  the  proper 
view,  but  it  must  be  conceded  that  by  the  weight  of  authority,  in 
the  absence  of  a  statute  providing  otherwise,  a  marriage  by  a  lu- 
natic or  idiot  or  drunken  person  is  not  merely  voidable,  but  abso- 
lutely void,  and  therefore  incapable  of  ratification,  or  of  having  any 
effect  whatever.70  Perhaps  in  most  states  this  rule  has  been  chang- 
ed by  statute,  and  such  marriages  are  made  voidable  only,  and  not 
void.71 

86  Barber  v.  People,  203  111.  543,  68  N.  E.  93 ;  Gillett  v.  Gillett,  78  Mich. 
184,  43  N.  W.  1101 ;  Prine  v.  Prine,  36  Fla.  676,  18  South.  781,  34  L.  R.  A. 
87;  Dunphy  v.  Dunphy,  161  Cal.  380,  119  Pac.  512,  38  L.  R,  A.  (N.  S.)  818, 
Ann.  Cas.  1913B,  1230;  Clement  v.  Mattison,  3  Rich.  (S.  C.)  93.  And  see, 
as  to  contracts  generally,  2  Kent,  Comm.  451 ;  Clark,  Cont.  p.  274. 

«  T  Prine  v.  Prine,  36  Fla.  676,  18  South.  781,  34  L.  R.  A.  87;  Scott  v. 
Paquet.  L.  R.  1  P.  C.  582. 

"Dwight,  Pers.  &  Pers.  Prop.  143;  Cole  v.  Cole,  5  Sneed  (Tenn.)  57,  70 
Am.  Dec.  275 ;  Wiser  v.  Lockwood's  Estate,  42  Vtt  720 ;  Setzer  v.  Setzer,  97 
N.  C.  252,  1  S.  E.  558,  2  Am.  St.  Rep.  290.  Some  hold  the  marriage  void  until 
it  is  ratified,  Cole  v.  Cole,  supra ;  while  others  hold  it  valid  until  is  It  avoid- 
ed, Wiser  v.  Lockwood's  Estate,  supra. 

«9  Hancock  v.  Peaty,  L.  R.  1  Prob.  &  Dlv.  335,  341. 

TO  Schouler,  Dom.  Rel.  §  18 ;  Inhabitants  of  Wlnslow  v.  Inhabitants  of 
Troy,  97  Me.  130,  53  Atl.  1008 ;  Sims  v.  Sims,  121  N.  C.  297,  28  S.  E.  407,  40 
L.  R.  A.  737,  61  Am.  St.  Rep.  665;  .Inhabitants  of  Middleborough  v.  Inhab- 

71  Stim.  Am.  St.  Law,  §  6113;  Inhabitants  of  Goshen  v.  Inhabitants  of 
Richmond,  4  Allen  (Mass.)  458;  Wiser  v.  Lockwood's  Estate,  42  Vt.  720; 
Waiters  v.  Watters,  168  N.  C.  411,  84  S.  E.  703;  Bruns  v.  Cope,  182  Ind.  289. 
105  N.  E.  471;  In  re  Gregorson's  Estate,  160  Cal.  21,  116  Pac.  60,  L.  R.  A. 
1916C,  691,  Ann.  Cas.  1912D,  1124 ;  Hamaker  v.  Hamaker,  IS  111.  137,  65  Am. 
Dec.  705. 


§  13)  MENTAL  CAPACITY  OP   THE  PARTIES  21 


SAME— NONAGE 

13.  The  parties  must  be  of  an  age  at  which  the  law  deems  them  ca- 
pable of  intelligently  consenting  to  enter  into  the  marriage 
relation.  At  common  law  the  age  of  consent  is  14  for 
males,  and  12  for  females,  but  in  most  states  the  age  of 
consent  has  been  raised  by  statute.  The  effect  of  mar- 
riages by  infants  is  as  follows: 

(a)  Marriages  after  the  age  of  consent  are  binding. 

(b)  Marriages  between  the  age  of  consent  and  the  age  of  seven 

years  are  voidable  on  or  before  reaching  the  age  of  con- 
sent, and  by  either  party. 

(c)  Marriages  below  the  age  of  seven  are  absolutely  void. 

The  age  of  consent — that  is,  the  age  at  which  an  infant  could 
consent  to  marriage,  so  that  it  would  be  binding — was  fixed  at 
common  law  at  14  for  males  and  12  for  females ; 72  but  the  common 
law  has  been  changed  in  this  respect  in  many  states  by  statute.78 

itants  of  Rochester,  12  Mass.  363;  Foster  v.  Means,  Speer,  Eq.  (S.  C.)  569, 
42  Am.  Dec.  332;  Inhabitants  of  Unity  v.  Inhabitants  of  Belgrade,  76  Me. 
419;  Holland  v.  Riggs,  53  Tex.  Civ.  App.  367,  116  S.  W.  167;  Crump  v. 
Morgan,  38  N.  C.  91,  40  Am.  Dec.  447;  Rawdon  v.  Rawdon,  28  Ala.  565; 
Jenkins  v.  Jenkins'  Heirs,  2  Dana  (Ivy.)  102,  26  Am.  Dec.  437;  Keyes  v. 
Keyes,  22  N.  H.  553;  Ward  v.  Dulaney,  23  Miss.  410.  But  see  Gross  v. 
Gross,  96  Mo.  App.  486,  70  S.  W.  393,  which  was  a  suit  to  annul  a  marriage 
on  the  ground  of  insanity  of  defendant  existing  when  the  marriage  was 
solemnized,  and  it  appeared  that  the  parties  lived  together  many  years  arid 
that  defendant  had  lucid  intervals.  It  was  held  that  the  continuance  of 
the  marital  relations  was  a  ratification  of  the  nuptial  contract  by  both  par- 
ties. See.  also,  Barber  v.  People,  203  111.  543,  68  N.  E.  93,  holding  that  intox- 
ication does  not  render  the  marriage  void,  but  only  voidable. 

"  parton  v.  Hervey,  1  Gray  (Mass.)  119;  Bennett  v.  Smith,  21  Barb. 
(N.  Y.)  439 ;  Browning  v.  Browning,  89  Kan.  98,  130  Pac.  852,  L.  R.  A.  1916C, 
1288,  Ann.  Cas.  1914C,  1288;  Cushman  v.  Cushman,  80  Wash.  615,  142  Pao. 
26,  L.  R.  A.  1916C,  732 ;  Green  v.  Green  (Fla.)  80  South.  739.  At  common  law 
the  age  at  which  persons  are  deemed  competent  to  contract  valid  marriage 
was  14  years  for  the  man  and  12  years  for  the  woman,  and  in  the  absence  of 
statute  this  rule  is  adopted  as  a  part  of  the  common  law  of  this  state.  Green 
v.  Green  (Fla.)  80  South.  739.  There  being  no  statute  prescribing  the  age  at 
which  persons  may  marry  in  Kansas,  the  common  law,  fixing  the  ages  at 
14  and  12,  respectively,  governs.  Browning  v.  Browning,  89  Kan.  98,  130 
Pac.  852,  L.  R.  A.  1916C,  737,  Ann.  Cas.  1914C,  1288. 

7 s  To  be  able  to  contract  a  marriage  a  male  person  must,  under  Civ.  Code 
<?a.  1910,  §  2931,  be  at  least  17  years  of  age.  Morgan  v.  Morgan,  148  Ga. 
€25,  97  S.  E.  675,  4  A.  L.  R.  925.  Statutes  designating  the  age  at  which  per- 


22  MARRIAGE  ( Ch.  3 

In  some  states  the  age  of  consent  has  been  raised  as  high  as  21 
for  males  and  18. for  females.74  Marriages  entered  into  by  infants 
who  are  above  the  age  of  consent  are  binding  on  them,  and  cannot 
be  avoided  on  their  becoming  of  age.75  Marriages  entered  into 
above  the  age  of  7  and  below  the  age  of  consent  may  be  avoided  on 
reaching  the  age  of  consent,  or  before.70  Marriages  entered  into 
where  either  party  is  below  7  are  absolutely  void.77  The  fact  that 
marriages  entered  into  above  the  age  of  consent  cannot,  like  the 
contracts  of  infants,  be  avoided  on  their  attaining  their  majority, 
rests  on  the  peculiar  nature  of  marriage — on  the  fact  that  it  is  not  a 
contract,  but  a  status,  involving  important  and  far-reaching  prop- 
erty rights,  and  interests  of  children  and  third  persons,  which  pub- 


sons  may  contract  marriage  are  to  be  retarded  as  raising  the  age  of  consent 
as  established  by  the  common  law.  Section  3  of  the  Illinois  Marriage  Act, 
providing  that  a  male  minor  of  the  age  of  IS  and  upwards  and  a  female  mi- 
nor of  the  age  of  16  and  upwards  may  marry  under  certain  conditions,  was 
Intended  by  the  Legislature  to  raise  the  age  of  consent  or  discretion  from  14 
and  12  years  respectively,  as  established  by  the  common  law,  to  18  and  16 
years  respectively.  Matthes  v.  Matthes,  198  111.  App.  515. 

74Rem.  &  Bal.  Code  Wash.  §§  7150,  7162.  7164,  providing  that  marriage 
may  be  entered  into  by  males  of  the  age  of  21  and  females  of  the  age  of  18, 
that  a  marriage  may  be  avoided  by  a  party  incapable  of  consenting  thereto, 
and  that  a  marriage  license  shall  not  issue  except  on  proof  of  legal  age  or 
consent  of  parents,  did  not  change  the  common-law  rule  that  males  of  14  and 
females  of  12  may  consent  to  marriage.  Cushman  v.  Cushman,  80  Wash. 
615,  142  Pac.  26,  L.  R.  A.  1916C,  732. 

732  Kent,  Comm.  78;  Co.  Litt.  79b;  1  Bl.  Comm.  436;  Reeve,  Dom.  Rel. 
236;  Parton  v.  Hervey,  1  Gray  (Mass.)  119:  White  v.  Hill,  176  Ala.  480,  58 
South.  444;  Pool  v.  Pratt,  1  D.  Chip.  (Vt.)  254;  Governor  v.  Rector,  10 
Humph.  (Tenn.)  61.  And  see  Reifschneider  v.  Reifschneider,  144  111.  App. 
119,  judgment  affirmed  241  111.  92,  89  N.  E.  255, 

762  Kent,  Comm.  78;  Co.  Litt.  33a,  70b;  2  Coin.  Dig.  "Baron  and  Feme," 
5 ;  1  Bl.  Comm.  436 ;  Beggs  v.  State,  55  Ala.  108 ;  McDeed  v.  McDeed,  67  111. 
545;  Macri  v.  Macri,  177  App.  Div.  292,  164  N.  Y.  Supp.  112;  Mundell  v. 
Coster,  SO  Misc.  Rep.  337,  142  N.  Y.  Supp.  142;  Koonce  v.  Wallace,  52  N.  C. 
194;  Eliot  v.  Eliot,  77  Wis.  634,  46  N.  W.  808,  10  L.  R.  A.  568,  Cooley  Cas. 
Persons  and  Domestic  Relations,  19 ;  notes  81,  82,  infra.  In  Aymar  v.  Roff . 
3  Johns.  Ch.  (N.  Y.)  49,  where  a  man  had  married  a  girl  under  12  years  of 
age,  and  the  girl  declared  her  ignorance  of  the  nature  and  consequences  of 
the  marriage,  and  her  dissent  to  it,  a  court  of  equity,  on  a  bill  by  her  next 
friend,  ordered  her  to  be  placed  under  its  protection  as  a  ward  of  the  cour^, 
and  forbade  Ihe  man  to  have  any  intercourse  or  correspondence  with  her, 
under  pain  of  contempt.  But  see  Hardy  v.  State,  37  Tex.  Cr.  R,  55,  38  S.  W. 
615,  holding  that,  under  a  statute  providing  that  males  under  16  years  and 
females  under  14  years  of  age  shall  not  marry,  there  can  be  no  common-law 
marriage  with  a  girl  of  10. 

112  Burn,  Ecc.  Law,  434a. 
\ 


§  13)  MENTAL  CAPACITY  OP   THE   PARTIES  23 

lie  policy  cannot  allow  to  be  jeopardized  at  the  will  of  either  party.78 
But  an  infant's  promise  to  marry,  though  he  be  over  the  age  of 
consent,  may  be  avoided  by  him  like  any  other  contract,  for  none 
of  the  complications  arising  from  the  assumption  of  the  status^of 
marriage  are  thereby  affected.79  The  marriage  of  infants  between 
the  age  of  7  and  the  age  of  consent  is  not  absolutely  void,  but  is 
only  inchoate  and  imperfect,  and  if  on  coming  to  the  age  of  consent, 
but  not  before  reaching  that  age,80  they  agree  to  continue  together, 
they  need  not  be  married  again,81  and  their  continuing  to  live  to- 
gether after  reaching  the  age  of  consent  is  a  sufficient  affirmance.82 

It  has  been  held  in  Ohio  that  a  marriage  by  an  infant  under  th.e 
age  of  consent  is  void  until  affirmed.  "Marriages  in  this  state," 
it  was  said  by  the  Ohio  court,  "contracted  by  male  persons  under 
the  age  of  18,  and  female  persons  under  14,  are  invalid,  unless  con- 
firmed by  cohabitation  after  arriving  at  those  ages,  respectively. 
Such  a  marriage  not  thus  confirmed  does  not  subject  a  party  to  pun- 
ishment for  bigamy  for  contracting  a  subsequent  marriage  while  the 
first  husband  or  wife  is  living."  83 

This  doctrine  of  the  Ohio  courts  is  however  contrary  to  reason 
and  the  weight  of  authority.  Thus  it  was  held  in  Arkansas  that, 
under  an  indictment  for  bigamy,  evidence  that  the  first  marriage 
was  within  the  age  of  legal  consent  is  no  defense,  unless  it  also  be 
shown  that  it  was  annulled  by  a  court  of  competent  jurisdiction. 
"By  the  common  law,"  it  was  said,  "if  he  did  not  disaffirm  the 

78  Schouler,  Dom.  Rel.  §  20;    1  Bish.  Mar.,  Div.  &  Sep.  §  566;    Parton  v. 
Hervey,  1  Gray  (Mass.)  119. 

79  Holt  v.  Ward  Clarencieux,  2  Strange,  937;    Hunt  v.  Peake,  5  Cow.  (N. 
Y.)  475,  15  Am.  Dec.  475;    Cannon  v.  Alsbury,  1  A.  K.  Marsh.  (Ky.)  76,  10 
Am.  Dec.  709.;    Clark,  Cont.  231,  note,  and  cases  cited. 

so  Eliot  v."  Eliot,  77  Wis.  634,  46  X.  W.  806,  10  L.  R.  A.  568,  Cooley  .Cas. 
Persons  and  Domestic  Relations,  19. 

si  1  Bl.  Comm.  436;  Elliott  v.  Gurr,  2  Phillim.  Ecc.  16;  Parton  v.  Hervey, 
1  Gray  (Mass.)  119;  Koonce  v.  Wallace,  52  N.  C.  194;  Fitzpatrick  v.  Fitz- 
patrick,  6  Nev.  63 ;  State  v.  Cone,  86  Wis.  498,  57  N.  W.  50. 

822  Dane  Abr.  301;  Holtz  v.  Dick,  42  Ohio  St.  23,  51  Am.  Rep.  791;  Terr- 
ky  v.  Terrky,  96  Misc.  Rep.  594,  160  N.  Y.  Supp.  1016 ;  Americus  Gas  &  Elec- 
tric Co.  v.  Coleman,  16  Ga.  App.  17,  84  S.  E.  493;  Powers" v.  Powers,  138  Ga. 
65,  74  S.  E.  759;  Matthes  v.  Matthes,  198  111.  App.  515;  Herrman  v.  Herr- 
man,  93  Misc.  Rep.  315,  156  X.  Y.  Supp.  688 ;  Long  v.  Baxter,  77  Misc.  Rep. 
630,  138  N.  Y.  Supp.  505 ;  State  v.  Parker,  106  N.  C.  711,  11  S.  E.  517.  See, 
also,  Canale  v.  People,  177  111.  219,  52  N.  E.  310,  holding  that  such  marriage 
may  be  disaffirmed  after  arriving  at  the  age  of  consent  by  ceasing  to  co- 
habit and  marrying  again. 

83  Shafher  v.  State,  20  Ohio,  1.  And  see  Crapps  v.  Smith,  9  Ga.  App.  400, 
71  S.  E.  501. 


24:  MARRIAGE  (Ch.  1 

marriage  on  reaching  the  age  of  legal  consent,  but  cohabited  with 
the  wife  after  arriving  at  such  age,  it  would  be  an  affirmance  of 
the  marriage."  8* 

Similarly  in  Alabama  the  Ohio  doctrine  has  been  disapproved  as 
opposed  to  the  great  weight  of  authority;  the  court  saying:  "The 
statute  serves  the  purpose  of  its  enactment  when  construed  as  op- 
erating merely  an  enlargement  of  the  age  of  consent  from  that 
fixed  by  the  common  law — of  12  in  females  and  14  in  males — 
to  14  in  females  and  17  in  males.  The  marriage  of  persons  not 
of  the  statutory  age  is,  as  was  the  marriages  between  persons  not  of 
the  age  of  consent  at  common  law,  imperfect,  becoming  perfect 
only  by  affirmance  when  the  requisite  age  is  obtained,  until  this 
affirmance,  it  is  a  marriage  in  fact,  and  the  second  marriage  of 
either  party  is  bigamy."  85 

The  right  to  disaffirm  a  marriage  on  the  ground  of  nonage  is  not 
limited  to  the  party  who  was  under  the  age  of  consent,  where  the 
other  party  was  of  a  suitable  age,  but  extends  also  to  the  latter. 
In  this  respect,  marriage  differs  from  contract.86  A  person  under 

»*  Walls  v.  State,  32  Ark.  565. 

so  Beggs  v.  State,  55  Ala.  108.  And  see  State  v.  Cone,  86  Wis.  498,  57  N. 
W.  50,  where  the  Ohio  doctrine  was  rejected  as  unsupported  "either  in  rea- 
son or  authority."  The  rule  that  such  marriages  are  voidable  only  is  also 
recognized  in  Willits  v.  Willits,  76  Neb.  228,  107  N.  W.  379,  5  L.  R.  A.  (N. 
S.)  767,  14  Ann.  Gas.  883 ;  People  v.  Souleotes,  26  Cal.  App.  309,  146  Pac.  903 ; 
Mitchell  v.  Mitchell,  63  Misc.  Rep.  580,  117  N.  T.  Supp.  671 ;  Ex  parte  Hollo- 
peter,  52  Wash.  41,  100  Pac.  159,  21  L.  R.  A.  (N.  S.)  847,  132  Am.  St  Rep.  952, 
17  Ann.  Cas.  91 ;  Hunt  v.  Hunt,  23  Old.  490,  100  Pac.  541,  22  L.  R,  A.  (N.  S.) 
1202;  People  v.  Ham,  20(5  111.  App.  543;  Owen  v.  Coffey,  201  Ala.  531,  78 
South.  885;  Levy  v.  Downing,  213  Mass.  334,  100  N.  E.  638  (construing  New 
Hampshire  Statute). 

s«  Schouler,  Dom.  Rel.  §  20;  1  Bish.  Mar.  &  Div.  §  149;  Co.  Litt.  79; 
Shafher  v.  State,  20  Ohio,  1.  But  see  People  v.  Slack,  15  Mich.  193.  "The 
next  legal  disability  is  want  of  age.  This  is  sufficient  to  avoid  all  other 
contracts,  on  account  of  the  imbecility  of  judgment  in  the  parties  contract- 
ing. A  fortiori,  therefore,  it  ought  to  avoid  this,  the  most  important  con- 
tract of  any.  Therefore,  if  a  boy  under  14  or  a  girl  under  12  years  of  age 
marries,  this  marriage  is  only  inchoate  and  imperfect;  and,  when  either  of 
them  comes  to  the  age  of  consent  aforesaid,  they  may  disagree,  and  declare 
the  marriage  void,  without  any  divorce  or  sentence  in  the  spiritual  court. 
This  is  founded  on  the  civil  law.  But  the  canon  laws  pays  a  greater  regard 
to  the  constitution,  than  the  age,  of  the  parties ;  for,  if  they  are  habiles  ad 
matrimonium,  it  is  a  good  marriage,  whatever  their  age  may  be.  And  in 
our  law  it  is  so  far  a  marriage  that  if,  at  the  age  of  consent,  they  agree  to 
continue  together,  they  need  not  be  married  again.  If  the  husband  be  of 
years  of  discretion,  and  the  wife  under  12,  when  she  comes  to  years  of  dis- 
cretion he  may  disagree  as  well  as  she  may,  for  in  contracts  the  obligation 


§  14)  CAPACITY  OF  PARTIES  OTHERWISE  THAN  MENTALLY  25 

the  age  of  consent  is  not  estopped  from  avoiding  his  marriage  on 
reaching  the  age  of  consent  by  the  fact  that  he  fraudulently  misrep- 
resented-his  age.87 

A  marriage  that  is  voidable  because  of  nonage  differs  from  a 
marriage  that  is  voidable  because  of  a  canonical  disability,  in  that 
it  can  be  avoided  by  the  act  of  the  party  or  parties,  and  no  decree  of 
nullity  is  necessary.88  As  will  be  seen  in  another  section,  statutes 
raising  the  age  of  consent,  though  they  may  declare  a  marriage 
under  the  age  of  consent  to  be  "void,"  are  construed  to  mean 
"voidable,"  and  to  leave  the  effect  of  the  marriage  the  same  as  at 
common  law.89  Consent  of  parents,  as  an  essential  of  marriage,  is 
referred  to  in  another  place.80 

CAPACITY  OF  PARTIES  OTHERWISE  THAN  MENTALLY 

14.  The  parties  must  be  capable,  in  other  respects  than  mentally, 
of  entering  into  the  marriage  relation.  There  must  be 
no  impediment  of 

(a)  Relationship. 

(b)  Physical  incapacity. 

(c)  Civil  conditions. 

(d)  Prior  marriage. 

must  be  mutual;  both  must  be  bound,  or  neither;  and  so  it  Is,  vice  versa, 
wheri  the  wife  is  of  years  of  discretion,  and  the  husband  under."  1  Bl. 
Comrn.  436.  It  will  be  noticed  that,  in  thus  stating  the  law,  Blackstone 
not  only  erroneously  classes  marriage  as  a  contract,  but  by  doing  so  he  falls 
into  error  in  attempting  to  support  the  rule  allowing  marriage  to  be  avoid- 
ed by  either  party,  though  one  of  them  was  above  the  age  of  consent,  by 
reference  to  principles  of  the  law  of  contract ;  that  is,  he  erroneously  as- 
sumes that,  where  an  adult  makes  a  contract  with  an  infant,  he,  as  well  as 
the  infant,  may  avoid  it.  This  tends  to  show  the  difficulty  and  danger  in 
considering  marriage  as  a  contract. 

ST  See  Eliot  v.  Eliot,  81  Wis.  295,  51  N.  W.  81,  15  L.  R.  A.  259. 

s  s  Co.  Litt.  79;  2  Burn,  Eec.  Law,  500;  1  Bl.  Comm.  436;  Walls  v.  State, 
32  Ark.  565,  570 ;  McDeed  v.  McDeed,  67  111.  545 ;  People  v.  Slack,  15  Mich. 
193.  But  see  Owen  v.  Coffey,  201  Ala.  531,  78  South.  885;  People  v.  Ham, 
206  111.  App.  543;  Mitchell  v.  Mitchell,  63  Misc.  Rep.  580,  117  N.  Y.  Supp. 
671,  holding  that  suit  for  annulment  is  necessary.  The  marriage  is  voidable 
only  at  the  election  of  one  of  the  parties,  and  not  by  a  parent  of  one  of  them. 
Wood  v.  Baker,  43  Misc.  Rep.  310,  88  N.  Y.  Supp.  854. 

«»  Post,  p.  -56.  80  Post,  p.  -37. 


26  MARRIAGE  (Cll.  1 


SAME— RELATIONSHIP 

15.  The  parties  must  not  be  within  the  prohibited  degrees  of  kin- 
dred, either  by  consanguinity  or  affinity.  In  the  absence  of 
a  statute,  there  can  be  no  valid  marriage  within  the  Leviti- 
cal  degrees;  that  is,  within  the  third  degree  of  civil  reck- 
oning, inclusive,  or,  in  other  words,  nearer  than  first  cous- 
ins. In  the  absence  of  statutory  provision  to  the  contrary, 
such  marriages  are  voidable,  and  not  void.  The  whole 
subject  is  now  very  generally  regulated  by  statutes,  defin- 
ing the  limits  within  which  relations  may  not  marry,  and 
generally  declaring  marriages  within  the  prohibited  de- 
grees absolutely  void. 

In  England,  prior  to  the  reign  of  Henry  VIII,  the  limits  of  the 
disqualification  of  relationship  had  been  extended. so  far  by  the 
ecclesiastical  courts  that  it  became  necessary  to  pass  a  statute  de- 
fining the  limits  within  which  relations  should  not  be  permitted 
to  intermarry ;  and  the  statute  of  32  Hen.  VIII,  c.  38,  was  enacted. 
This  statute  prohibited  the  ecclesiastical  courts  from  impeaching 
"any  marriage  without  the  Levitical  degrees."  Under  this  statute 
the  impediment  of  consanguinity  has  been  treated  "as  applicable 
to  the  whole  ascending  and  descending  line,  and,  further,  as  ex- 
tending to  the  third  degree  of  the  civil  reckoning,  inclusive ;  or,  in 
other  words,  so  as  to  prohibit  all  marriages  nearer  than  first  cous- 
ins." 91  Under  this  statute  the  impediment  of  consanguinity,  or 
blood  relationship,  would  extend  to  a  man's  grandmother,  his  fa- 
ther's or  mother's  sister,  his  mother,  or  his  daughter  or  grand- 
daughter. And  it  would  extend  to  a  woman's  grandfather,  her 
father's  or  mother's  brother,  her  father,  her  son,  or  her  grandson.92 
The  statute  is  old  enough  to  have  become  a  part  of  our  common 
law,  and  it  has  been  so  recognized.  In  most  states,  however,  stat- 
utes have  been  enacted.93  In  some  states  the  limits  have  been 

»i  Schouler,  Dom.  Rel.  (5th  Ed.)  §  16. 

»2  Schouler,  Doin.  Rel.  (5th  Ed.)  §  16 ;  Harrison  v.  State,  22  Md.  468,  85 
Am.  LKiC.  658:  Bowers  v.  Bowers,  10  Rich.  Eq.  (S.  C.)  551,  73  Am.  Dec.  99. 
See,  also,  Weisberg  v.  Weisberg,  112  App.  Div.  231,  98  N.  Y.  Supp.  260  > 

93  These  statutes  will  not  be  construed  as  retroactive.  Weisberg  v.  Weis- 
berg, 112  App.  Div.  231,  98  X.  Y.  Supp.  260;  In  re  Wittick's  Estate,  164 
Iowa,  485,  145  N.  W.  913 ;  Schofleld  v.  Schofield,  51  Pa.  Super.  Ct  504. 


§   15)  CAPACITY  OF  PARTIES  OTHERWISE  THAN  MENTALLY  27 

extended.04  The  rule  of  consanguinity  applies  as  well  to  the  half 
blood  as  to  the  whole  blood,95  and  to  illegitimate  as  well  as  legiti- 
mate issue.96 

Affinity  is  the  relationship  by  marriage  between  the  husband  and 
the  blood  relations  of  the  wife,  and  between  the  wife  and  the  blood 
relations  of  the  husband.  "A  husband  is  related  by  affinity  to  all 
the  consanguinei  of  his  wife,  and,  vice  versa,  the  wife  to  the  hus- 
band's consanguinei ;  for,  the  husband  and  wife  being  considered 
one  flesh,  those  who  are  related  to  the  one  by  blood  are  related  to 
the  other  by  affinity."97  In^EnglisJi  law  the  same  impediment. to 
marriage  existed  in  the  case  of  relationship  by  affinity  as  in  the 
case  of  relationship  by  blood,  so  that  a  man  could  not  marry  his 
grandfather's  wife,  his  wife's  grandmother,  his  father's  brother's 
wife,  his  mother's  brother's  wife,  his  wife's  father's  sister,  his  wife's 
mother's  sister,  his  stepmother,  his  wife's  mother,  his  wife's  sister, 
or  his  stepdaughter.  And  a  woman  could  not  marry  her  grand- 
mother's husband,  her  husband's  grandfather,  her  father's  sister's 
husband,  her  mother's  sister's  husband,  her  husband's  father's 

»4  See  statutes  of  the  several  states.  In  some  states  the  prohibition  includes 
first  cousins.  See,  for  example,  Act  Pa.  June  24,  1901  (P.  L.  597) ;  Rev. 
St.  111.  1874,  c.  89,  §  1,  as  amended  by  Laws  1887,  p.  225 ;  Act  Iowa,  July  4, 
1909,  c.  212.  Rem.  &  Bal.  Code  Wash.  §  7151,  prohibiting  first  cousins  from 
marrying,  is  not  repealed  by  implication  by  section  2455,  defining  incest,  or 
by  Laws  Ex.  Sess.  1909,  c.  16,  prohibiting  marriages  in  certain  cases ;  there 
being  nothing  in  the  last  act  indicating  an  intent  to  legalize  marriages  be- 
tween persons  nearer  than  second  cousins.  State  v.  Nakashima,  62  Wash. 
686,  114  Pac.  894,  Ann.  Cas.  1912D,  220.  A  marriage  between  a  man  and 
the  daughter  of  his  half-sister  is  within  the  prohibition  of  section  1  of 
chapter  89  of  the  statutes  (Kurd's  Rev.  St.  111.  1913;  Jones  &  A.  Ann.  St. 
1913,  par.  7345)  of  marriages  between  uncles  and  nieces.  Williams  v.  Mc- 
Keene,  193  111.  App.  615. 

us  Reg.  v.  Inhabitants  of  Brighton,  1  Best  &  S.  447.  In  most  states  there 
are  special  enactments  to  this  effect. 

a  e  Reg.  v.  Chadwick,  11  Q.  B.  173;  Homer  v.  Liddiard,  1  Hagg.  Consist. 
337,  352;  Morgan  v.  State,  11  Ala.  289.  Contra,  State  v.  Roswell,  6  Conn. 
446. 

97  Gibs.  Cod.  412 ;  .1  Bl.  Comm.  435 ;  Butler  v.  Gastrill,  Gilb.  Ch.  156 ; 
Chinn  v.  State,  47  Ohio  St.  575,  26  N.  E.  9S6,  11  L.  R.  A.  G30;  Blodgec 
v.  Brinsmaid,  9  Vt.  27.  In  some  states  it  has  been  held  that  relationship 
by  affinity  is  terminated  by  the  dissolution  by  death  or  divorce  of  the 
marriage  which  produced  it.  Blodget  v.  Brinsmaid,  9  Vt.  27;  Kelly  v.  Neely, 
12  Ark.  657,  56  Am.  Dec.  288 ;  Bock  v.  Bock,  148  Iowa,  223,  125  N.  W.  1009, 
L.  R,  A.  1916C,  752,  Ann.  Cas.  1912B,  1025.  The  contrary  rule  was  adopted 
in  Spear  v.  Robinson,  29  Me.  531 ;  and  in  Paddock  v.  Wells,  2  Barb.  Ch.  (N.  Y.) 
331,  it  is  said  that  the  relationship  is  not  terminated  by  death  if  living  issue 
of  the  marriage  survives. 


28  MARRIAGE  (Ch.  1 

brother,  her  husband's  mother's  brother,  her  stepfather,  her  hus- 
band's father,  her  husband's  brother,  or  her  stepson.98  In  this  coun- 
try many  of  the  courts  have  refused  to  follow  the  English  law  in 
this  respect.  In  Vermont,  for  instance,  it  was  held  that  a  man 
could  marry  his  deceased  wife's  sister."  In  most  states  the  impedi- 
ment of  relationship  both  by  consanguinity  and  affinity  is  entirely 
regulated  by  statute. 

Consanguinity  and  affinity,  being  canonical  disabilities,  render 
marriages  voidable,  and  not  void,1  unless  the  rule  has  been  changed 
by.  statute,  and  all  the  principles  governing  voidable  marriages  ap- 
ply. In  some  states,  by  statute,  marriage  within  the  prohibited  de- 
grees of  kindred  are  now  declared  to  be  not  merely  voidable,  but 
void.2  But  statutes  declaring  such  marriages  to  be  void  have  been 
held  in  some  courts  to  be  simply  declaratory  of  the  English  law, 
that  is,  to  mean  that  they  are  void  only  upon  a  decree  of  court  dur- 
ing the  lives  of  the  parties.8 

os  Schouler,  Dom.  Eel.  §  16;  Hill  v.  Good,  Vaughan,  302;  Harris  v. 
Hicks,  2  Salk.  548. 

"Blodget  v.  Brinsmaid,  9  Vt.  27;  Kelly  v.  Neely,  12  Ark.  657,  56  Am. 
Dec.  2SS. 

1  Schouler,  Dom.  Rel.  f  16 ;    Harrison  v.  State,  22  Md.  468,  85  Am.  Dec. 
658 ;    Schofield  v.  Schofield,  51  Pa.  Super.  Ct.  564 ;    Tyler  v.  Andrews,  40 
Anp.  D.  C.  100 ;    State  v.  Smith,  101  S.  C.  293,  85  S.  E.  958,  Ann.  Gas.  1917C, 
149;    Boylan  v.  Deinzer,  45  N.  J.  Eq.  485,  18  Atl.  119.     A  marriage  between 
relations  within  forbidden  degrees  will  be  annulled  at  the  instance  of  either 
party,  though  the  applicant  may  have  knowingly  and  willfully  entered  into 
the  same.    Martin  v.  Martin,  54  W.  Va.  301,  46  S.  E.  120,  1  Ann.  Cas.  612. 

2  Stim.  Am.  St  Law,  §  6112 ;    Mcllvain  v.  Scheibley,  109  Ky.  455,  59  S.  W. 
498;    Fearnow  v.  .Tones,  84  Okl.  694,   126  Pac.  1015,  L.  R,  A.   1916C,  720. 
Since  the  passage  of  Act  June  24,  1901  (P.  L.  597),  prohibiting  the  marriage 
of  first  cousins,  such  a  marriage  is  incestuous.     McClain  v.  McClain,  40  Pa. 
Super.  Ct.  248.    Under  Rev.  St.  1874,  c.  89,  §  1,  as  amended  by  Laws  1887,  p. 
225,  and  Of.  Code,  div.  1.  §  157  (Rev.  St  1874,  c.  38),  marriage  of  first  cousins 
are  void,  and  not  merely  voidable  and  there  can  be  no  estoppel  against  the 
right  to  allege  the  invalidity  of  the  marriage.     Arado  v.  Arado,  281  111.  123, 
117  X.  R  816,  4  A.  L.  R.  28. 

3  ITnrrison  v.  State,  22  Md.  468,  85  Am.  Dec.  658;    Bonham  v.  Badgley,  2 
Oilman  (111.)  622;    Parker's  Appeal,  44  Pa.  309;    Com.  v.  Perryman,  2  Leigh 
(Va.)  717;   Bowers  v.  Bowers,  10  Rich.  Eq.  (S.  C.)  551,  73  Am.  Dec,  99;   post, 
p.  66. 


§  16)  CAPACITY  OF  PARTIES  OTHERWISE  THAN  MENTALLY  29 


SAME— PHYSICAL  INCAPACITY 

16.  The  parties  must  be  physically  capable;  but  capacity  to  copu- 
late, not  fruitfulness,  is  the  test.  The  incapacity  must  ex- 
ist at  the  time  of  the  marriage.  Neither  party  can  set  up 
his  or  her  own  impotence  to  defeat  the  marriage.  In  the 
absence  of  statutory  provision  to  the  contrary,  impotence 
renders  a  marriage  voidable,  and  not  void. 

The  parties  to  a  marriage  must  be  physically  capable.  Ability 
to  propagate  the  species  is  not,  however,  as  might  well  be  supposed, 
the  test  of  the  requisite  physical  condition.  If  the  parties  are  able 
to  have  sexual  intercourse,  the  requirements  of  the  law  are  satisfied. 
Copula,  not  fruitfulness,  is  the  test.4  There  must  be  an  impotentia 
copulandi  on  the  part  of  the  man  or  of  the  woman,  proceeding  from 
malformation,  frigidity,  disease,  or  some  other  like  cause.  The  law 
does  not  fail  to  recognize  the  procreation  of  children  as  one  of  the 
ends  of  martimony,  but  it  does  refuse  to  annul  a  marriage  merely 
because  one  of  the  parties  is  not  capable  of  procreation.5  Impo- 
tence must  exist  at  the  time  of  the  marriage,  to  avoid  it.  If  a  party 
is  physically  capable  of  copulation  at  the  time  of  the  marriage,  his 
or  her  subsequent  impotency  does  not  avoid  the  marriage.6  Nei- 
ther party  will  be  permitted  to  set  up  his  or  her  own  impotence  as 
a  ground  of  nullity.7  Nullity  of  marriage  has  been  decreed  on  the 

4D v.  A ,  1  Rob.  Ecc.  279,  298;  Anon.,  Deane  &  S.  29<5;  Briggs 

v.  Morgan,  8  Phillim.  Ecc.  325 ;  Devanbagh  v.  Devanbagh,  5  Paige  (N.  Y.) 

554,  28  Am.  Dec.  443 ;  E v.  T ,  33  Law  J.  Mat  Gas.  37 ;  J.  G.  v.  H.  G., 

33  Md.  401,  3  Am.  Rep,  183 ;  Keith  v.  Keith,  Wright  (Ohio)  518 ;  Powell  v. 
Powell,  18  Kan.  371,  26  Am.  Rep.  774 ;  Bascomb  v.  Bascomb,  25  N.  H.  267 ; 
Norton  v.  Norton,  2  Aiken  (Vt.)  188 ;  Schroter  v.  Schroter,  56  Misc.  Rep.  69, 
106  N.  Y.  Supp.  22 ;  Wendel  v.  Wendel,  30  App.  Div.  447,  52  N.  Y.  Supp.  72. 
The  wife's  epilepsy,  limiting,  but  not  preventing,  copulation,  is  not,  in  the 
absence  of  fraud,  ground  for  annulment  of  the  marriage.  Elser  v.  Elser 
(Sup.)  160  N.  Y.  Snpp.  724.  Tinder  Code  Civ.  Proc.  §  1752,  authorizing  an  ac- 
tion to  annul  a  marriage  on  the  ground  of  physical  incapacity  by  the  party 
who  is  physically  incapable,  a  wife  may  sue  to  annul  her  marriage  because 
of  her  physical  incapacity  resulting  from  a  hysterical  condition  accompanied 
by  mental  and  emotional  disturbances  following  attempts  to  consummate  the 
marriage.  Anonymous  v.  Anonymous,  69  Misc.  Rep.  489,  126  N.  Y.  Supp.  149. 

5  D v.  A ,  1  Rob.  Ecc.  279,  298 ;  Schroter  v.  Schroter,  56  Misc.  Rep. 

69,  106  N.  -Y.  Supp.  22. 

e  W v.  H ,  30  Law  J.  Prob.  Mat.  &  Adm.  73 ;  D v.  A ,  1  Rob. 

Ecc.  279,  298. 

7  Norton  v.  Seton,  3  Phillim.  Ecc.  147. 


30  MARRIAGE  (Ch.  1 

ground  of  impotence,  even  when  it  was  curable,  where  the  party 
refused  to  submit  to  the  necessary  treatment  to  effect  a  cure.8 
Except  in  such  a  case,  however,  curable  impotence  does  not  render 
a  marriage  invalid. 

In  the  absence  of  a  statutory  provision  to  the  contrary,  impo- 
tence, being  a  canonical  impediment,  renders  a  marriage  voidable, 
and  not  absolutely  void,9  and  the  principles  applicable  to  voidable 
marriages  apply.10  In  some  states  this  rule  has  been  changed  by 
statute.11  But  the  same  rule  of  construction  applies  to  these  stat- 
utes as  has  been  mentioned  as  applicable  to  statutes  in  regard  to 
relationship.  As  to  whether  a  court  of  equitv  has  jurisdiction,  in 
this  country,  to  annul  a  marriage  on  the  ground  of  impotence  is 
shown  in  another  place.12 

In  several  states  statutes  have  been  enacted  for  the  purpose  of 
preventing  the  marriage  of  persons  afflicted  with  certain  diseases.13 


SAME— CIVIL  CONDITIONS— RACE,  ETC. 

17.  The  parties  must  not  be  disqualified  by  civil  conditions.  Thus, 
in  many  states,  marriages  between  negroes,  Indians,  or 
Chinese,  and  white  persons,  are  prohibited. 

At  common  law,  and  in  England  to-day,  no  impediment  to  mar- 
riage exists  on  account  of  race,  color,  religion,  or  social  rank.14  In 
many  of  the  United  States,  by  statute,  however,  marriages  between 
white  persons  and  negroes,  and  in  a  few  states  between  white  per- 

s  Devanbagh  v.  Devanbagh,  6  Paige  (N.  Y.)  175;   L v.  L ,  7  Prob. 

Div.  16. 

»  Schouler,  Dom.  Rel.  §  19 ;  T.  v.  M.  L.  R.,  1  Prob.  &  Div.  31 ;  A.  v.  B., 
L.  R.  1  Prob.  &  Div.  559 ;  T.  v.  D.,  L.  R.  1  Prob.  &  Div.  127 ;  Cavell  v.  Prince, 
L.  R.  1  Exch.  246;  Anonymous,  24  N.  J.  Eq.  19;  P.  v.  S.,  37  Law  J.  Mat. 
Cas.  80;  Smith  v.  Moorehead,  59  X.  C.  360;  Bennett  v.  Bennett,  169  Ala. 

618,  53  South.  986,  L.  R,  A.  1916C,  693 ;    G v.  G ,  67  N.  J.  Eq.  30, , 

56  Atl.  736. 

10  Post,  p.  56. 

11  Stlm.  Am.  St.  Law,  §  6112. 

12  Post,  p.  59. 

i»Comp.  Laws  N.  D.  1913,  §§  4373-4378;  St.  Wis.  1913,  §  2339m.  See 
Peterson  v.  Widule,  157  Wis.  641,  147  N.  W.  966,  52  L.  R.  A.  (N.  S.)  778, 
Ann.  Cas.  1918B,  1040.  But  see  McGill  v.  McGill,  179  App.  Div.  343,  166  N. 
Y;  Supp.  397,  reversing  judgment  99  Misc.  Rep.  86,  163  N.  Y.  Supp.  462. 

i«  1  Bish.  Mar.,  Div.  &  Sep.  §  691. 


§  18)  CAPACITY  OP  PARTIES  OTHERWISE  THAN  MENTALLY  31 

sons  and  Indians  or  Chinese,  are  unlawful.15  These  statutes,  as 
a  rule,  make  such  unions  absolutely  void,  without  the  necessity  of 
a  judicial  sentence,  and  leave  either  party  free  to  enter  into  a  sub- 
sequent marriage. 

Slavery  was  formerly  a  further  impediment.  It  was  a  rule  that 
a  slave,  being  a  chattel,  could  not  make  any  contract;  and,  as 
marriage  was  in  the  nature  of  a  contract,  slave  marriages  were 
therefore  absolutely  void.16  But  they  have  now  very  generally 
been  legalized  by  statute,  where  cohabitation  continued  after  eman- 
cipation.17 

SAME— PRIOR  MARRIAGE 

18.  In  the  absence  of  statutory  provision  to  the  contrary,  a  valid 
and  undissolved  prior  marriage  of  either  party  renders  a 
marriage  absolutely  void  ab  initio,  even  though  the  parties 
may  have  acted  in  good  faith,  and  in  a  reasonable  belief 
that  the  former  spouse  was  dead  or  divorced. 

It  is  the  rule  of  the  common  law  that  a  valid  and  undissolved 
prior  marriage  by  either  or  both  of  the  parties  is  an  impediment 
to  marriage.  An  attempted  second  marriage  while  a  valid  prior 
marriage  is  undissolved  is  absolutely  void,  and  void  ab  initio, 
without  any  decree  of  court;  the  children  of  the  second  marriage 
being  illegitimate,  and  the  marriage  being  subject  to  collateral 
attack  by  any  person,  and  at  any  time.18  It  is  immaterial  whether 

is  Stim.  Am.  St.  Law,  §  6112  F.  See  State  v.  Brady,  9  Humph.  (Term.)  74 ; 
State  v.  Hooper,  27  N.  C.  201;  Succession  of  Minvielle,  15  La.  Ann.  342; 
Bailey  v.  Fiske,  34  Me.  77;  Jones  v.  Jones,  45  Md.  144;  Honey  v.  Clark, 
37  Tex.  687;  In  re  Walker's  Estate,  5  Ariz.  70,  46  Pac.  67;  Wilbur  v. 
Bingham,  8  Wash.  35,  35  Pac.  407,  40  Am.  St.  Rep.  886;  Carter  v.  Veith, 
139  La.  584,  71  South.  792.  Rev.  St.  1909,  §  8280,  declaring  marriages  be- 
tween white  persons  and  negroes  absolutely  void,  has  reference  to  blood 
or  race,  and  not  to  color.  A  negro,  within  the  statute,  means  a  person 
having  one-eighth  portion  or  more  of  negro  blood.  Marre  v.  Marre,  184 
Mo.  App.  198,  168  S.  W.  636. 

i«  Hall  v.  U.  S.,  92  U.  S.  27,  23  L.  Ed.  597;  Cantelou  v.  Doe,  56  Ala.  519; 
Napier  v.  Church,  132  Tenn.  Ill,  177  S.  W.  56;  Lemons  v.  Harris,  115  Va. 
809,  80  S.  E.  740;  Merrick  v.  Betts,  214  Mass.  223,  101  N.  E.  131;  Howard 
v.  Howard,  51  N.  C.  235. 

i?A  slave  marriage  entered  into  in  Georgia  is  ratified  by  continued  cohab- 
itation after  emancipation.  Meyers  v.  Meyers,  139  La.  752,  72  South.  218. 

is  Riddlesden  v.  Wogan,  Cro.  Eliz.  858 ;  Pride  v.  Earls  of  Bath,  1  Salk.  121 ; 
Plant  v.  Taylor,  7  Hurl.  &  N.  211 ;  Miles  v.  Chilton,  1  Rob.  Ecc.  687 ;  In  re 
Wilson's  Trusts,  L.  R.  1  Eq.  247 ;  Zahorka  v.  Geith,  129  Wis.  498,  109  N.  W. 


32  MARRIAGE  (Ch.  1 

the  former  marriage  were  formal  or  ceremonial  marriage  or  an 
informal  or  common-law  marriage.19  And  since  such  marriages 
are  void  they  cannot  be  ratified.20 

The  common-law  rule  has  been  changed  in  some  states  by  stat- 
utes providing,  in  substance,  that  if  the  second  marriage  was 
entered  into  in  good  faith,  and  on  a  reasonable  belief  that  the 
former  spouse  was  dead,  the  marriage  is  merely  voidable,  becoming 
void  only  on  a  declaration  of  nullity  by  a  court  of  competent  juris- 
diction,21 and  that  the  issue  shall  be  deemed  the  legitimate  children 

552;  Glass  v.  Glass,  114  Mass.  563;  Martin's  Heirs  v.  Martin,  22  Ala.  86; 
Fenton  v.  Reed,  4  Johns.  (N.  Y.)  52,  4  Am.  Dec.  244;  Heffner  v.  Heffner, 
23  Pa.  104;  Jackson  v.  Claw,  18  Johns.  (N.  Y.)  347;  Blossom  v.  Barrett,  37 
N.  Y.  434,  97  Am.  Dec.  747;  Higgins  v.  Breen,  9  Mo.  497;  Grigsby  v.  Relb 
(Tex.  Civ.  App.)  139  S.  W.  1027;  Ponder  v.  Graham,  4  Fla.  23;  Tefft  v. 
Tefft,  35  Ind.  44 ;  Rhea  v.  Rhenner,  1  Pet.  105,  7  L.  Ed.  72 ;  Drummond  v. 
Irish,  52  Iowa,  41,  2  N.  W.  622,  Cooley  Cas.  Persons  and  Domestic  Relations, 
24;  Dare  v.  Dare,  52  N.  J.  Eq.  195,  27  Atl.  654;  Reeves  v.  Reeves,  54  111. 
332 ;  Cartwright  v.  McGown,  121  111.  388,  12  N.  E.  737,  2  Am.  St.  Rep.  105  ; 
Emerson  v.  Shaw,  56  N.  H.  418;  Janes  v.  Janes,  5  Blackf.  (Ind.)  141;  Mc- 
Caig  v.  State,  16  Ala.  App.  581,  80  South.  155;  Williams  v.  State,  44  Ala. 
24;  Succession  of  Thomas,  144  La.  25,  80  South.  186;  Clark  v.  Clark,  115 
Miss.  726,  76  South.  638;  Butler  v.  Butler,  93  Misc.  Rep.  258,  157  N.  Y. 
Supp.  188;  McCullen  v.  McCullen,  162  App.  Dlv.  599,  147  N.  Y.  S.  1069; 
Evatt  v.  Mier,  114  Ark.  84,  169  S.  W.  817,  L.  R.  A.  1916C,  759 ;  Goset  v.  Goset, 
112  Ark.  47,  164  S.  W.  759,  L.  R.  A.  1916C,  707;  Duenser  v.  Supreme  Coun- 
cil of  Royal  Arcanum,  262  111.  475,  104  N.  E.  801,  51  L.  R.  A.  (N.  S.)  726, 
reversing  judgment  178  111.  App.  648;  In  re  Huston's  Estate,  48  Mont.  524, 
139  Pac.  458. 

ioApplegate  v.  Applegate,  45  N.  J.  Eq.  116,  17  Atl.  293;  Cunningham  v. 
Cunningham  (Tex.  Civ.  App.)  210  S.  W.  242;  Walton  v.  Walton  (Tex.  Civ. 
App.)  191  S.  W.  188. 

20  Pettit  v.  Pettit,  105  App.  Div.  312.  93  N.  Y.  Supp.  1001 ;    In  re  Graham 
(N.  J.  Eq.)  46  Atl.  224 ;    Blanke  v.  Southern  Ry.  Co.,  82  Miss.  203,  35  South. 
570;    Earle  v.  Earle,  141  App.  Div.  611,  126  N.  Y.  Supp.  317;    McCullen  v. 
McCullen,  162  App.  Div.  599,  147  N.  Y.   Supp.  1069;    Kinney  v.  Tri  State 
Tel.  Co.  (Tex.  Civ.  App.)  201  S.  W.  1180.    But  see  Stein  v.  Stein,  66  111.  App. 
526 ;  People  v.  Booth,  121  Mich.  131,  79  N.  W.  1100.    The  party  at  fault  may 
be  estopped  to  allege  the  invalidity  of  the  second  marriage.    Shrader  v.  fihra- 
der,  119  Miss.  526,  81  South.  227.     And  see  Rawson  v.  Rawson,  156  Mass. 
578,  31  N.  E.  653. 

21  Vigno  v.  Vigno  (N.  H.)  106  Atl.  285 ;    Stokes  v.  Stokes,  198  N.  Y.  301,  91 
N.  E.  793;    Grand  Lodge  Knights  of  Pythias  v.  Barnard,  9  Ga.  App.  71,  70 
S.  E.  678;   Brown  v.  Brown,  153  App.  Div.  645,  138  N.  Y.  Supp.  602;    Barker 
v.  Barker,  172  App.  Div.  244,  158  N.  Y.  Supp.  413,  modifying  judgment  92 
Misc.  Rep.  390,  156  N.  Y.  Supp.  194;    Taylor  v.  Taylor,  63  App.  Div.  231, 
71  N.   Y.   Supp.  411;    In  re  Del   Genovese's  Will,   56   Misc.   Rep.  418,   107 
N.    Y.    Supp.    1033,    affirmed    136    App.    Div.    894,    120    N.    Y.    Supp.    1121; 
Chittenden  v.  Chittenden,  68  Misc.  Rep.  192,  123  X.  Y.   Supp.  629.     There 
must,  however,  be  reasonable  efforts  made  to  ascertain  the  facts.     Gall  v. 


§  18)  CAPACITY  OP  PARTIES  OTHERWISE  THAN  MENTALLY  33 

of  the  parent  not  previously  married.22  In  the  absence  of  a  statu- 
tory provision,  however,  the  good  faith  of  either  or  both  of  the 
parties  is  immaterial,  in  so  far  as  the  validity  of  the  marriage  and 
legitimacy  of  the  children  are  concerned,23  though  in  some  juris- 
dictions a  bona  fide  belief  in  the  death  of  a  husband  or  wife,  under 
certain  circumstances,  may  be  a  defense  in  a  prosecution  for  big- 
amy.24 

When  a  man  and  woman  are  legally  married  the  woman  continues 
to  be  his  wife,  notwithstanding  her  subsequent  bigamous  marriage 
during  his  lifetime.25  On  the  other  hand,  a  void  marriage,  of 
course,  is  no  marriage  at  all,  and  can  impose  no  restraint  on  the 
right  of  the  parties  to  marry  again.  Therefore,  where  an  attempted 
marriage  is  void,  a  second  marriage  is  perfectly  valid,  though  the 


Gall,  114  N.  Y.  109,  21  N.  E.  106,  Cooley  Cas.  Persons  and  Domestic  Re- 
lations, 28.  Where  the  second  marriage  occurred  before  the  expiration  of 
five  years  from  the  time  of  the  abandonment,  it  is  invalid  from  the  begin- 
ning. In  re  Stanton  (Sur.)  123  N.  Y.  Supp.  458.  A  woman  whose  husband 
had  left  her  for  over  seven  years  may  lawfully  contract  a  common-law  mar- 
riage. In  re  Spondre,  98  Misc.  Rep.  524,  162  N.  Y.  Supp.  943.  Under  Civ. 
Code  1902,  §  2661,  declaring  that  all  marriages  contracted  while  either  of  the 
parties  has  a  former  spouse  living  shall  be  void,  but  that  the  section  shall 
not  extend  to  a  person  whose  husband  or  wife  shall  have  been  absent  for 
seven  years,  the  one  not  knowing  the  other  to  be  living  at  that  time,  a 
second  marriage,  by  a  woman  whose  first  husband  was  living,  though  he  had 
been  absent  for  more  than  seven  years,  was  not  valid,  for,  under  the  consti- 
tutional provision  that  no  divorce  shall  be  allowed,  marriages  are  indissolu- 
ble, though  the  second  marriage  was  entitled  to  a  presumption  of  validity 
until  the  existence  of  the  former  spouse  was  established.  Davis  v.  Whitlock, 
90  S.  C.  233,  73  S.  E.  171,  Ann.  Cas.  1913D,  538.  Where  the  husband  was 
in  the  penitentiary,  and  the  wife  had  not  seen  him  for  five  years,  there  was 
no  presumption  of  bis  death  to  support  the  good  faith  of  the  wife  in  marry- 
ing again.  Alixanian  v.  Alixanian,  28  Misc.  Rep.  638,  59  N.  Y.  Supp.  1068. 
Under  Penal  Law  (Consol.  Laws,  c.  40)  §  511,  Domestic  Relations  Law  (Con- 
sol.  Laws,  c.  14)  §§  6,  58,  and  in  view  of  Prison  Law  (Consol.  Laws,  c.  43,  as 
amended  "by  Laws  1910,  c.  703)  §§  212,  214,  215,  and  section  218  as  amend- 
ed by  Laws  1912,  c.  286,  relating  to  a  parole  on  discharge  of  persons  given 
an  indeterminate  sentence,  the  wife  of  one  convicted  of  second  degree  mur- 
der, sentenced  to  life  imprisonment  with  a  minimum  term  of  20  years,  could 
again  marry.  Gargan  v.  Sculley,  82  Misc.  Rep.  667,  144  N.  Y.  Supp.  205. 

22  Stim.  Am.  St.  Law,  §  6116. 

as  in  re  Wilson's  Trusts,  L.  R.  1  Eq.  247;  Glass  v.  Glass,  114  Mass.  563; 
People  v.  Dawell,  25  Mich.  247,  12  Am.  Rep.  260 ;  Kenley  v.  Kenley,  2  Yeates 
(Pa.)  207;  Heffner  v.  Heffner,  23  Pa.  104;  Thomas  v.  Thomas,  124  Pa.  646, 
17  Atl.  182 ;  Webster  v.  Webster,  58  N.  H.  3 ;  Pain  v.  Pain,  37  Mo.  App.  110. 

24  Clark,  Cr.  Law,  309.    See,  also,  Wilson  v.  Allen,  108  Ga.  275,  33  S.  E.  975. 

25  Estes  v.  Merrill,  121  Ark.  361,  181  S.  W.  136. 
TIFF.P.&  D.REL.(3o  Eo.)^3 


34  MARRIAGE  (Ch.  1 

first  marriage  has  not  been  judicially  annulled.28  But,  for  obvious 
reasons,  it  is  desirable  to  have  the  validity  of  the  prior  marriage 
determined  by  sentence  of  nullity.  A  divorce  a  mensa  et  thoro,  of 
course,  does  not  entitle  either  party  to  marry  again ;  but  it  is  other- 
wise, in  the  absence  of  statutory  prohibition,  in  the  case  of  a  divorce 
a  vinculo  matrimonii.  The  divorce  must  of  course  be  absolute. 
A  decree  nisi  is  not  sufficient  to  entitle  either  party  to  marry.27 
And  of  course  the  divorce  must  be  valid.28  The  presumption  as  to 
dissolution  of  the  prior  marriage  by  death  or  divorce  are  considered 
in  a  subsequent  section.29 

Restrictions  on  Right  to  Marry  after  Divorce 

In  many  states  statutes  have  been  enacted  placing  restrictions 
on  the  right  to  marry  after  even  an  absolute  divorce,  as  by  pro- 
hibiting a  marriage  within  a  certain  time,80  or  in  case  of  divorce  for 

2 «  Patterson  v.  Gaines,  6  How.  550,  12  L.  Ed.  553;  Bruce  v.  Burke,  2  Ad- 
dams,  Ecc.  471,  2  Eng.  Ecc.  R.  381 ;  Reg.  v.  Chadwick,  12  Jur.  174,  11  Q.  B. 
173 ;  Appleton  v.  Warner,  51  Barb.  (N.  T.)  270 ;  In  re  Bethune's  Will,  4  Dem. 
Sur.  (N.  Y.)  392;  McCaffrey  v.  Benson,  38  La.  Ann.  198;  Reeves  v.  Reeves, 
54  111.  332;  Drummond  v.  Irish,  52  Iowa,  41,  2  N.  W.  622,  Cooley  Oas.  Per- 
sons and  Domestic  Relations,  24 ;  Dare  v.  Dare,  52  N.  J.  Eq.  195,  27  Atl.  654 ; 
In  re  Eichhoff's  Estate,  101  Cal.  600,  36  Pac.  11 ;  In  re  Harrington's  Estate, 
140  Cal.  244,  73  Pac.  1000,  98  Am.  St.  Rep.  51,  rehearing  denied  140  Cal.  294, 
73  Pac.  1131,  74  Pac.  136. 

27  Cook  v.  Cook,  144  Mass.  163,  10  N.  E.  749;  Pettit  v.  Pettit,  105"  App.  Div. 
312,  93  N.  T.  Supp.  1001 ;  Wilson  v.  Burnett,  105  Misc.  Rep.  279,  172  N.  T. 
Supp.  673 ;  Dallman  v.  Dallman,  159  Wis.  480,  149  N.  W.  137 ;  In  re  Elliott's 
Estate,  165  Cal.  339,  132  Pac.  439. 

as  McCreery  v.  Davis,  44  S.  C.  195,  22  S.  E.  178,  28  L.  R.  A.  655,  51  Am. 
St.  Rep.  794;  State  v.  Westmoreland,  76  S.  C.  145^  56  S.  E.  673,  8  L.  R.  A. 
(N.  S.)  842. 

2  »  Post,  p. -62. 

«o  Code  Ala.  1907,  §  3811  (sixty  days) ;  Hurd's  Rev.  St.  111.  1909,  c.  40,  § 
la  (one  year;  but  the  party  guilty  of  adultery  two  years)  ;  Code  Supp.  Iowa 
1913,  §  3181  (one  year) ;  Gen.  St.  Kan.  1915,  §  7582  (six  months) ;  Rev.  Laws 
Mass.  1902,  c.  152,  §  21  (guilty  party  two  years) ;  Gen.  St.  Minn.  1913,  § 
7090  (six  months) ;  Rev.  Codes  Mont.  1907,  §  3657  (two  years ;  guilty  party 
three  years) ;  Gen.  Laws  Vt.  1917,  §  3602  (guilty  party  three  years)  ;  Rein. 
Code,  Wash.  1915,  §§  991,  992  (six  months  or  pending  appeal)  ;  Code  W.  Va. 
1916,  c.  64,  §  14  (Code  Supp.  1918  [sec.  3648a])  (six  months;  the  guilty  party 
may  be  further  prohibited  for  any  period  not  to  exceed  five  years) ;  St.  Wis. 
1915,  §  2330  (one  year);  Comp.  St.  Wyo.  1910,  §  3951  (one  year).  In  the 
District  of  Columbia  only  the  innocent  party  may  marry.  Code  of  Law  D. 
C.  1911,  §  966.  In  several  states  the  period  within  which  the  parties  may 
marry  may  be  fixed  by  the  court  in  the  decree.  Comp.  Laws  Mich.  1915,  § 
11434 ;  Comp.  Laws,  N.  D.  1913,  §  4379.  In  Georgia  the  period  may  be  fixed 
by  the  jury.  Park's  Ann.  Civ.  Code  Ga.  1914,  §  2964.  In  Oregon  the  parties 
may  not  marry  within  the  time  for  taking  an  appeal.  L,  O.  L.  1910,  §  515. 


§  18)  CAPACITY  OF  PARTIES  OTHERWISE  THAN  MENTALLY  35 

adultery  by  prohibiting  the  guilty  party  from  marrying  his  or  her 
paramour,  or  from  marrying  at  all  in  the  lifetime  of  the  other 
party.31  Though  in  a  few  jurisdictions  it  has  been  held  that  under 
such  statutes  a  marriage  within  the  period  specified  is  voidable 
only  and  not  void,32  the  general  rule,  sustained  by  the  great  weight 
of  authority,  is  that  marriages  entered  into  in  contravention  of  the 
provisions  of  the  statute,  'are  absolutely  void.33  But  it  has  been 

Of  course,  in  those  states  where  the  statute  provides  for  an  interlocutory 
decree  of  divorce  to  become  final  only  after  the  lapse  of  a  fixed  period  the 
parties  cannot  marry  until  the  decree  becomes  final.  See  Civ.  Code  Cal.  §§ 
61,  132 ;  Laws  Colo.  1917,  pp.  183,  184 ;  Code  Del.  1915,  §  3026 ;  Rev.  Laws 
Mass.  1902,  c.  152,  §  18 ;  Rev.  St.  Neb.  1913,  §  1606 ;  2  Comp.  St.  N.  J.  1910, 
p.  2035,  §§  20,  21 ;  Gen.  Laws  R.  I.  1909,  c.  247,  §  19.  Kurd's  Rev.  St.  1913, 
c.  40,  §  la,  prohibiting  remarriage  of  divorced  persons  within  one  year,  since 
it  applies  alike  to  all  persons  similarly  situated,  does  not  violate  Const.  U. 
S.  Amend.  14,  §  1,  as  to  equal  protection  of  the  laws.  Hobbs  v.  Hobbs,  279 
111.  163,  116  N.  E.  629. 

si  Hemingway's  Code  Miss.  1917,  §  1412 ;  Laws  N.  Y.  1909,  c.  19  (Consol. 
Laws,  c.  14)  §  8;  Civ.  Code  S.  D.  1913,  p.  11,  §  83;  Code  Tenn.  1918,  §  4228; 
Code  Va.  1904,  §  2265. 

32  Park  v.  Barron,  20  Ga.  702,  65  Am.  Dec.  641 ;  State  v.  Yoder,  113  Minn. 
903,  130  N.  W.  10,  L.  R.  A.  1916C,  686;  Lee  v.  Lee,  150  Iowa,  611,  130  N. 
W.  128;  Crawford  v.  State,  73  Miss.  172,  18  South.  848,  35  L.  R.  A.  224; 
Woodward  v.  Blake,  38  N.  D.  38,  164  N.  W.  156,  L.  R.  A.  1918A,  88,  Ann. 
Cas.  1918E,  552.  A  statutory  prohibition  to  the  effect  that,  in  case  of  di- 
vorce on  the  ground  of  adultery,  the  guilty  party  can  never  marry  his  or 
her  accomplice  in  adultery,  is  directed  against  marriage  between  the  guilty 
spouse  and  the  particular  person  or  persons  who  are  designated  in  the  pe- 
tition for  the  divorce,  or  described  in  the  evidence  in  support  of  it,  and  upon 
which  petition  and  evidence  the  decree  of  divorce  is  founded.  Succession 
of  Hernandez,  46  La.  Ann.  962,  15  South.  461,  24  L.  R.  A.  831. 

3 s  White  v.  White,  105  Mass.  325,  7  Am.  Rep.  526;  State  v.  Shattuck,  69 
Vt.  403,  38  Atl.  81,  40  L.  R.  A.  428,  60  Am.  St.  Rep.  936;  Ovitt  v.  Smith. 
68  Vt.  35,  33  Atl.  769,  35  L.  R.  A.  223;  Rand  v.  Bogle,  197  111.  App.  476; 
Gardner  v.  Gardner,  98  Misc.  Rep.  411,  162  N.  Y.  Supp.  365;  State  v.  Fenn, 
47  Wash.  561,  92  Pac.  417,  17  L.  R.  A.  (N.  S.)  SOO ;  Evans  v.  Evans,  200  Ala. 
329,  76  South.  95;  Szlauzis  v.  Szlauzis,  255  111.  314,  99  N.  E.  640,  L.  R.  A. 
1916C,  741,  Ann.  Cas.  1913D,  454 ;  Wilhite  v.  AVilhite,  41  Kan.  154,  21  Pac. 
173;  In  re  Elliott's  Estate,  165  Cal.  339,  132  Pac.  439;  Wilson  v.  Cook,  256  111. 
460,  100  N.  E.  222,  43  L.  R.  A.  (N.  S.)  365 ;  Snell  v.  Snell,  191  111.  App.  239 ; 
Succession  of  Gabisso,  119  La.  704,  44  South.  438,  11  L.  R.  A.  (N.  S.)  1082, 
121  Am.  St.  Rep.  529 ;  Hooper  v.  Hooper,  67  Or.  187,  135  Pac.  205,  525 ;  State 
v.  Sartwell,  81  Vt.  22,  69  Atl.  151,  130  Am.  St.  Rep.  1017;  Hunt  v.  Hunt, 
201  111.  App.  615;  Thomas  v.  James  (Okl.)  171  Pac.  855;  Eaton  v.  Eaton,  66 
Neb.  676,  92  N.  W.  995,  60  L.  R.  A.  605,  1  Ann.  Cas.  199.  Where  the  defend- 
ant was  granted  a  decree  of  divorce  during  the  forenoon  of  June  6,  1913, 
and  was  married  to  the  complainant  at  5  o'clock  p.  m.,  June  6,  1914,  such 
marriage  was  within  the  provision  of  the  statute  prohibiting  marriage  "with- 
in one  year  from  the  time"  a  decree  of  divorce  from  a  prior  marriage  was 


36  MARRIAGE  (Ch.  1 

held  in  California  that  a  statute  prohibiting  divorced  persons  from 
marrying  within  the  period  in  which  an  appeal  may  be  taken  ap- 
plies only  to  residents  of  the  state,  and  does  not  render  invalid  a 
marriage  within  the  state  of  nonresidents,  one  or  both  of  whom 
had  been  divorced  in  some  other  state.34  The  effect  of  marriages 
contracted  outside  of  the  state  to  evade  the  law  restricting  the 
right  to  marry  after  divorce  will  be  considered  in  a  subsequent 
section.85 

FORMALITIES  IN  CELEBRATION— INFORMAL 
MARRIAGES 

19.  The  parties  should  comply  with  the  statutory  law  in  the  cele- 

bration of  marriage,  but  noncompliance  does  not  neces- 
sarily render  the  marriage  invalid.  At  common  law  no 
formalities  are  necessary;  mutual  consent,  express  or  im- 
plied from  conduct,  being  sufficient. 

20.  If  a  statute  prescribes  formalities  for  the  celebration  of  mar- 

riage, it  is  not  to  be  construed  as  rendering  an  informal 
marriage  invalid,  unless  it  expressly  so  declares. 

21.  Informal  marriages  may  be  per  verba  de  praesenti — that  is,  by 

consent  to  live  together  presently  as  husband  and  wife — 
no  copula  being  necessary.  It  is  sometimes  said  that  there 
may  be  a  marriage  per  verba  de  future  cum  copula — that 
is,  by  an  agreement  to  marry  in  the  future,  followed  by 
copula  in  pursuance  thereof.  But  it  is  believed  that  by  the 
better  authority  a  marriage  can  be  effected  per  verba  de 
futuro  cum  copula  only  when  the  circumstances  are  such 
that  a  present  agreement  at  the  time  of  the  copula  can  be 
implied. 

In  most,  if  not  all,  of  the  states,  statutes  have  been  enacted  pre- 
scribing certain  formalities  to  be  observed  in  the  celebration  of 

granted,  as  the  first  day  should  be  excluded,  and  the  last  included.  Kahlo 
v.  Kahlo,  204  111.  App.  409. 

s«  People  v.  Woodby,  22  Cal.  App.  674,  136  Pac.  312.  It  has  been  held  In 
Oregon  that  a  marriage  by  the  only  party  entitled  to  appeal  from  the  de- 
cree of  divorce  is  not  void.  Wallace  v.  McDaniel,  59  Or.  378,  117  Pac.  314, 
L.  R.  A.  1916C,  744.  But  compare  Hooper  v.  Hooper,  67  Or.  187,  135  Pac. 
205,  525. 

<»  See  post,  p.  71. 


§§  19-21)  FORMALITIES  IN   CELEBRATION  37 

marriages.  These  statutes  usually  provide  either  for  the  publica- 
tion of  banns  or  the  giving  of  public  notice  of  the  intention  to 
marry  in  some  other  manner,36  ot  for  the  issuance  of  a  license  to 
marry  by,  some  officer  authorized  to  issue  such  licenses.37  In  many, 
if  not  all,  states,  consent  of  the  parents  or  guardians  is  required 
where  the  parties  are  minors. 

The  statutes  relating  to  ceremonial  marriages  also  contain 
express  provisions  as  to  the  persons  who  may  solemnize  marriages, 
such  as  priests,  ministers  of  the  gospel,  judges,  justices  of  the 
peace,  or  other  magistrates.38  Usually  the  person  solemnizing  the 
marriage  is  required  to  make  a  return  thereof  to  some  officer  desig- 
nated to  keep  a  record  thereof.39  It  is  not  essential  to  the  validity 
of  a  ceremonial  marriage  that  any  particular  form  of  words  be 
used.  It  is  sufficient  if  the  words  employed  show  a  present  agree- 
ment.40 

Though  the  formalities  prescribed  by  the  statutes  should  be  sub- 
stantially complied  with,41  in  a  large  majority  of  the  states  the 
statutes,  unless  expressly  made  mandatory  by  their  terms,  or  by 
necessary  implication,  are  construed  as  directory  merely,  and  not 
mandatory,42  and  a  marriage,  if  ia  other  respects  valid,  is  not  in- 

se  See  Rev.  St.  Me.  1916,  c.  64,  §  4,  providing  that  residents  of  the  State 
intending  to  be  joined  in  marriage  shall  cause  notice  of  their  intentions  to 
be  recorded  in  the  office  of  the  clerk  of  the  town  in  which  each  resides,  or, 
if  nonresidents,  the  notice  shall  be  recorded  in  the  office  of  the  clerkvof  the 
town  in  which  the  parties  intend  to  have  the  marriage  solemnized. 

37  See  the  statutes  of  the  several  states. 

ss  See  the  statutes  of  the  several  states.  In  Indiana  the  mayor  of  a  city 
may  solemnize  marriages.  Burns'  Ann.  St.  1914,  §  8361.  In  Florida  a  no- 
tary public  may  act.  Comp.  Laws  Fla.  1914,  §  2575 ;  and  see  also  section 
305.  See,  also,  Civ.  Code  S.  C.  1912,  §  3751.  Under  the  Georgia  statute,  the 
ordinary  is  a  judge,  and  may  lawfully  perform  marriage  ceremony.  Dar- 
row  v.  Darrow,  201  Ala.  477,  78  South.  383. 

e.9  See  the  statutes  of  the  several  states. 

40  Inhabitants  of  Milford  v.  Inhabitants  of  Worcester,  7  Mass.  48;  In  re 
Richard,  133. Cal.  524,  65  Pac.  1034;  Patterson  v.  Gaines,  6  How.  550,  12 
L.  Ed.  553 ;  Beamish  v.  Beamish,  9  H.  L.  Cas.  274,  11  Eng.  Rep.  735.  Celebra- 
tion of  marriage  may  be  proved  by  oral  testimony  Santiago  v.  Cruz,  19  Phil. 
Rep.  145. 

"Act  Alaska  May  3,  1917  (Laws  1917,  c.  56),  in  effect  August  1,  1917; 
Civ.  Code  Cal.  §  55,  as  amended  by  Act  March  26,  1895  (St.  1895,  p.  121); 
Rev.  St.  Ky.  1852,  c.  47,  §  2 ;  Carroll's  Ky.  St.  1915,  §  2097 ;  Klenke  v.  Noon- 
an,  118  Ky.  436,  81  S.  W.  241 ;  Estill  v.  Rogers,  64  Ky.  (1  Bush)  62 ;  Bashaw 
v.  State,  1  Yerg.  (Tenn.)  177 ;  Smith  v.  Bank,  115  Tenn.  12,  89  S.  W.  392. 

42  Franklin  v.  Lee,  30  Ind.  App.  31,  62  N.  E.  78;  State  v.  Zichfeld,  23 
Nev.  304,  46  Pac.  802,  34  L.  R.  A.  784,  62  Am.  St.  Rep.  800;  Renfrow  v. 


38  MARRIAGE  (Ch.  1 

validated  by  a  mere  informality  in  its  celebration.  The  mere  fact 
that  the  statute  prescribes  certain  formalities  does  not  render  in- 
valid a  marriage  in  which  those  formalities  are  not  strictly  ob- 
served.48 


Renfrew,  60  Kan.  277,  56  Pac.  534,  72  Ara.  St.  Rep.  350,  Cooley  Cas.  Persons 
and  Domestic  Relations,  25;  State  v.  McGilvery,  20  Wash.  240,  55  Pac.  115; 
Connors  v.  Connors,  5  Wyo.  433,  40  Pac.  968;  In  re  Love's  Estate,  42  Okl. 
478,  142  Pac.  305,  L.  R.  A.  1915E,  109;  Maggett  v.  Roberts,  112  N.  C.  71,  16 
S.  E.  919 ;  Shattuck  v.  Shattuck,  118  Minn.  60,  136  N.  W.  410 ;  Port  v.  Port, 
70  111.  484;  McKenua  v.  McKenna,  380  111.  577,  54  N.  E.  641;  Godfrey  v. 
Rowland,  16  Hawaii,  377;  Feehley  v.  Feehley,  129  Md.  565,  99  Atl.  663,  L. 
R,  A.  1917C,  1017;  Gardiner  v.  Manchester,  88  Me.  249,  33  Atl.  990;  State 
v.  Walker,  36  Kan.  297,  13  Pac.  279,  59  Am.  Rep.  556;  Teter  v.  Teter,  101 
Ind.  139,  51  Am.  Rep.  742;  Landry  v.  Bellanger,  120  La.  962,  43  South.  957, 
15  L.  R.  A.  (N.  S.)  463,  14  Ann.  Cas.  952;  In  re  Svendsen's  Estate,  37  S. 
D.  353,  158  N.  W.  410.  In  the  following  cases  the  provisions  of  the  statutes 
of  the  respective  states  were  held  to  be  mandatory:  Schumacher  v.  Great 
Northern  R.  Co.,  23  N.  D.  231,  136  N.  W.  85;  Morrill  v.  Palmer,  68  Vt.  1, 
33  Atl.  829,  33  L.  R.  A.  411 ;  Northfield  v.  Plymouth,  20  Vt.  582 ;  Smith  v. 
North  Memphis  Savings  Bank,  115  Tenn.  12,  89  S.  W.  392 ;  Offleld  v.  Davis, 
100  Va.  250,  40  S.  E.  910.  See,  also,  Beverliu  v.  Beverlin,  29  W.  Va.  732,  3 
S.  E.  36,  and  In  re  Meade's  Estate,  82  W.  Va.  650,  97  S.  E.  127.  In  Holmes 
v.  Holmes,  1  Sawy.  99,  Fed.  Cas.  No.  6638,  the  United  States  Circuit  Court 
for  the  District  of  Oregon  held  that  the  provisions  of  the  Oregon  statute  are 
mandatory,  but  as  the  statement  was  not  necessary  to  the  decision  it  must 
be  regarded  as  dictum.  Moreover,  the  views  of  the  judge  are  contrary  to 
the  principles  laid  down  in  Meister  v.  Moore.  96  U.  S.  76,  24  L.  Ed.  826. 

43  Meister  v.  Moore,  96  U.  S.  76,  24  L.  Ed.  826;  Blackburn  v.  Crawford, 
3  Wall,  185,  18  L.  Ed.  186 ;  Hutchins  v.  Kimmell,  31  Mich.  126,  18  Am.  Rep. 
164;  State  v.  Worthingham,  23  Minn.  528;  Overseers  of  Poor  of  Town  of 
Newbury  v.  Overseers  of  Poor  of  Town  of  Brunswick,  2  Vt.  151,  19  Am.  Dec. 
703 ;  Bowman  v.  Bowman,  24  111.  App.  165 ;  Port  v.  Port,  70  111.  484 ;  Par- 
ton  v.  Hervey,  1  Gray  (Mass.)  119;  Hervey  v.  Moseley,  7  Gray  (Mass.)  479, 
66  Am.  Dec.  515;  Teter  v.  Teter,  101  Ind.  129,  51  Am.  Rep.  742;  Town  of 
Londonderry  v.  Town  of  Chester,  2  N.  H.  268,  9  Am.  Dec.  61;  Dyer  v.  Bran- 
nock,  66  Mo.  391,  27  Am.  Rep.  359 ;  Dumaresly  v.  Fishly,  3  A.  K.  Marsh.  (Ky.) 
368;  Cannon  v.  Alsbury,  1  A.  K.  Marsh.  (Ky.)  76,  10  Am.  Dec.  709;  Steven- 
son v.  Gray,  17  B.  Mon.  (Ky.)  193;  Holmes  v.  Holmes,  6  La.  463,  26  Am.  Dec. 
482;  Franklin  v.  Lee,  30  Ind.  App.  31,  62  N.  E.  78;  State  v.  Zichfeld,  23 
Nev.  304,  46  Pac.  802,  34  L.  R.  A.  784,  62  Am.  St.  Rep.  800 ;  Renfrew  v.  Ren- 
frew, 60  Kan.  277,  56  Pac.  534,  72  Am.  St.  Rep.  350,  Cooley  Cas.  Persons  and 
Domestic  Relations,  25;  State  v.  McGilvery,  20  Wash.  240,  55  Pac.  115; 
Travers  v.  Reinhardt,  205  U.  S.  423,  27  Sup.  Ct.  563,  51  L.  Ed.  865.  See,  also, 
Act  Alaska  May  3,  1917  (Laws  1917,  c.  56),  in  effect  Aug.  1,  1917;  Code  Miss. 
1906,  §  3249.  Unless  the  statute  expressly  declares  a  marriage  without  the 
consent  of  the  parents  or  other  requirements  of  the  statute  to  be  a  nullity, 
such  statutes  will  be  construed  to  be  directory  only  in  these  respects,  so  that 
the  marriage  will  be  held  valid,  though  the  disobedience  of  the  statute  may 
entail  penalties  on  the  licensing  or  officiating  officers.  Reifschneider  v.  Reif- 
schneider,  241  111.  92,  89  N.  E.  255,  affirming  judgment  144  111.  App.  119. 


§§  19-21)  FORMALITIES   IN   CELEBRATION  39 

% 

If,  however,  the  statute  specifically  or  by  necessary  implication 
so  provides,  a  failure  to  comply  with  its  provisions  will  render  the 
marriage  void.44  On  the  other  hand,  a  marriage  celebrated  in 


That  consent  of  parents  is  not  necessary  to  the  validity  of  a  marriage,  even 
though  a  statute  prohibits  a  marriage  without  such  consent,  and  imposes  a 
penalty  for  violation  of  its  provisions,  see  Rex  v.  Inhabitants  of  Birmingham, 
8  Barn.  &  C.  29 ;  Sturgis  v.  Sturgis,  51  Or.  10,  93  Pac.  696,  15|  L.  R.  A.  (N. 
S.)  1034,  131  Am.  St.  Rep.  724 ;  Inhabitants  of  Hiram  v.  Pierce,  45  Me.  367, 
71  Am.  Dec.  5551;  Parton  v.  Hervey,  1  Gray  (Mass.)  119;  Hervey  v.  Mose- 
ley,  7  Gray  (Mass.)  479,  66  Am.  Dec.  515;  Goodwin  v.  Thompson,  2  G.  Greene 
(Iowa)  329 ;  Smyth  v.  State,  13  Ark.  696 ;  Holtz  v.  Dick,  42  Ohio  St.  23,  51 
Am.  Rep.  791;  Wyckoff  v.  Boggs,  7  N.  J.  Law,  138;  Hargroves  v.  Thomp- 
son, 31  Miss.  211 ;  Cannon  v.  Alsbury,  1  A.  K.  Marsh.  (Ky.)  76,  10  Am.  Dec. 
709;  Browning  v.  Browning,  89  Kan.  98,  130  Pac.  852,  L.  R.  A.  1916C,  1288, 
Ann.  Cas.  1915A,  174;  Hunter  v.  Milam  (Cal.)  41  Pac.  332;  In  re  Ambrose, 
170  Cal.  160,  149  Pac.  43;  People  v.  Ham,  206  111.  App.  543.  But  see  In 
re  McLaughlin's  Estate,  4  Wash.  570,  30  Pac.  651,  16  L.  R.  A.  699.  That 
solemnization  before  a  qualified  minister  or  particular  magistrate  is  not  nec- 
essary to  the  validity  of  a  marriage,  though  a  statute  declares  that  only 
ministers  and  magistrates  shall  be  competent  to  perform  the  marriage  cere- 
mony, see  Meister  v.  Moore,  96  U.  S.  76,  24  L.  Ed.  826;  Town  of  London- 
derry v.  Town  of  Chester.  2  N.  H.  268,  9  Am.  Dec.  61;  Campbell's  Adm'r 
v.  Gullatt,  43  Ala.  57 ;  Carmichael  v.  State,  12  Ohio  St.  553 ;  Holder  v.  State, 
35  Tex.  Cr.  Rv  19,  29  S.  W.  793 ;  Ross  v.  Sparks,  81  N.  J.  Eq.  117,  88  Atl.  384, 
affirmed,  81  N.  J.  Eq.  211,  88  Atl.  385;  Hunter  v.  Milam  (Cal.)  41  Pac.  332. 
And  as  to  want  of  a  license  required  by  statute  not  rendering  a  marriage 
invalid,  see  Meister  v.  Moore,  96  U.  S.  76,  24  L.  Ed.  826;  Teter  v.  Teter,  101 
Ind.  129,  51  Am.  Rep.  742;  Campbell's  Adm'r  v.  Gullatt,  43  Ala.  57;  Askew 
v.  Dupree,  30  Ga.  173 ;  Hargroves  v.  Thompson,  31  Miss.  211 ;  Stevenson  v. 
Gray,  17  B.  Mon.  (Ky.)  193 ;  Dumaresly  v.  Fishly,  3  A.  K.  Marsh.  (Ky.)  368 ; 
Connors  v.  Connors,  5  Wyo.  433,  40  Pac.  966 ;  Chapman  v.  Chapman,  11  Tex. 
Civ.  App.  392,  32  S.  W.  564;  Franklin  v.  Lee,  30  Ind.  App.  31,  62  N.  E.  78; 
State  v.  Zichfeld,  23  Nev.  304,  46  Pac.  802,  34  L.  R.  A.  784,  62  Am.  St.  Rep. 
800;  Draughn.v.  State,  12  Okl.  Cr.  479,  158  Pac.  890,  L.  R.  A.  1916F,  793; 
In  re  Svendsen's  Estate,  37  S.  D.  353,  158  N.  W.  410;  Feehley  v.  Feehley, 
129  Md.  565,  99  A.  663,  L.  R.  A.  1917C,  1017;  Davidson  v.  Ream,  97  Misc. 
Rep.  89,  161  N.  Y.  Supp.  73;  Melcher  v.  Melcher,  102  Neb.  790,  169  N.  W. 
720,  4  A.  L.  R.  492.  Comp.  Laws,  §  8602  et  seq.,  as  to  marriage  licenses, 
does  not  invalidate  a  marriage  because  the  affidavit  for  the  marriage  license 
falsely  states  residence  in  the  county  where  the  license  is  issued.  Switch- 
men's Union  of  North  America  v.  Gillerman,  196  Mich.  141,  162  N.  W.  1024, 
L.  R.  A.  1918A,  1117.  That  mere  irregularities  in  issuing  the  license  will  not 
affect  the  validity  of  the  marriage,  see  State  v.  Day,  108  Minn.  121,  121  N. 
W.  611;  Reifschneider  v.  Reifschneider,  241  111.  92,  89  N.  E.  255,  affirming 
judgment  144  111.  App.  119.  But  see  Herd  v.  Herd,  194  Ala.  613,  69  South. 
885,  L.  R.  A.  1916B,  1243. 

**  Franklin  v.  Lee,  300  Ind.  App.  31,  62  N.  E.  78;  Schumacher  v.  Great 
Northern  R.  Co.,  23  N.  D.  231,  136  N.  W.'85 ;  Bashaw,  v.  State,  1  Yerg.  (Tenn.) 
177 ;  Smith  v.  Bank,  115  Tenn.  12,  89  S.  W.  392.  And  see  the  following  stat- 
utes: Alaska,  Act  May  3,  1917  (Laws  1917,  c.  56),  in  effect  August  1,  1917; 


40  MARRIAGE  (Ch.  1 

• 

conformity  with  the  requirements  of  the  statute  is  complete,  though 
not  followed  by  cohabitation,46  and  its  validity  is  not  affected  by 
any  secret  reservation  of  one  of  the  parties,  unknown  to  the  other,48 
or  by  other  acts  not  affecting  the  essentials  of  the  marriage,  but 
calculated  only  to  deceive  the  public.47 

Informal  or  Common-Law  Marriage 

The  term  "common-law  marriage"  may  be  defined  as  a  marriage 
contracted  by  consent  of  the  parties  only,  without  either  a  religious 
or  a  civil  ceremony.  Such  marriages  were  recognized  by  the 
canon  law  prior  to  the  decree  of  the  Council  of  Trent  in  1563,  but 
since  that  date  a  solemnization  by  a  priest  in  the  presence  of  wit- 
nesses has  been  required  in  most  Catholic  countries.  In  England, 
however,  the  decree  was  not  recognized,  and  for  several  centuries 
it  was  the  accepted  rule  that  no  ceremony  was  necessary  to  create 
the  marriage  relation.  This  view  of  the  English  law  was  over- 
thrown in  1844  by  the  decision  in  Regina  v.  Millis,48  and  by  subse- 
quent legislation. 

In  the  United  States  the  old  rule  had  gained  a  foothold  long 
before  the  decision  of  Regina  v.  Millis,  and  though  some  states 
have  refused  to  recognize  informal  or  common-law  marriages,49 

Illinois,  Act  May  13,  1905  (Laws  111.  1905,  p.  317) ;  Utah,  Comp.  Laws  1907, 
§  1184 ;  Wisconsin,  St.  1917,  §  2339n. 

45  Potier  v.   Barclay,   15  Ala.  439;    Williams  v.  Williams,   71  Misc.  Rep. 
500,  130  N.  Y.  Supp.  875;    Thompson  v.  Thompson,  202  S.  W.  175,  judgment 
modified  on  second  motion  for  rehearing  203  S.  W.  939. 

46  Hilton  v.  Roylance,  25  Utah,  129,  69  Pac.  660,  58  L.  R.  A.  723,  95  Am. 
St.  Rep.  821 ;  Barker  v.  Barker,  88  Misc.  Rep.  300,  151  N.  Y.  Supp.  811. 

47  state  v.  Tillinghast,  25  R.  1.  391,  56  Atl.  181.    The  fact  that  the  par- 
ties agreed  to  conceal  their  marriage  and  not  live  together  openly  for  two 
years  does  not  affect  an  otherwise  legal  marriage.     Reifschneider  v.  Reif- 
schneider,  241  111.  92,  89  N.  E.  255,  affirming  judgment  144  111.  App.  119. 

43  10  Clark  &  F.  534,  17  Eng.  Rul.  Cas.  66. 

4»  Alaska — Common-law  marriages  contracted  in  Alaska  after  August  1, 
1917,  are  not  valid.  See  Act  May  3,  1917  (Laws  1917,  c.  56),  in  effect  August 
1,  1917.  Marriages  contracted  prior  to  that  date  are  probably  valid. 

Arizona — Common-law  marriages  contracted  since  October  1,  1913,  are  not 
valid.  Civ.  Code  1913,  par.  3844.  Marriages  contracted  prior  to  that  date 
are  probably  valid.  See  Civ.  Code  Ariz.  1901,  par.  3098. 

Arkansas— Furth  v.  Furth,  97  Ark.  272,  133  S.  W.  1037,  Ann.  Cas.  1912D, 
595;  Evatt  v.  Miller,  114  Ark.  84,  169  S.  W.  817,  L.  R.  A.  1916C,  750. 

California — Common-law  marriages  contracted  since  March  26,  1895,  are 
not  valid.  Civ.  Code  Cal.  §  55;  Norman  v.  Norman,  121  Cal.  620,  54  Pac. 
143,  42  L.  R.  A.  343,  66  Am.  St.  Rep.  74.  Prior  to  the  date  mentioned  such 
marriages  were  valid.  White  v.  White,  82  Cal.  427,  23  Pac.  276,  7  L.  R.  A. 
799 :  Estate  of  Mc-Causland,  52  Cal.  577. 

Connecticut — Common-law  marriages  are  probably  not  valid.    The  question 


§§  19-21,  FORMALITIES    IN   CELEBRATION  41 

in  a  majority  of  the  states  such  marriages  are  regarded  as 
valid.50 

has  never  been  before  the  Supreme  Court,  but  such  would  seem  to  be  the 
effect  of  Gen.  St.  1902,  §  4538. 

Delaware — The  Supreme  Court  of  Delaware  has  very  recently  held  such 
marriages  invalid.  Wilmington  Trust  Co.  v.  Hendrixson,  114  Atl.  215.  This 
case  approves  of  the  Massachusetts  rule  that,  where  the  state  legislates 
in  respect  to  marriage,  such  legislation  supersedes  the  common  law.  The 
case  goes  much  farther,  however.  It  holds  that  common-law  marriage  is  in- 
consistent with  and  is  not  suited  to  our  institutions  and  was  never  adopted  as 
a  part  of  our  common  law. 

Illinois — Common-law  marriages  contracted  since  July  1,  1905,  are  not 
valid.  Act  May  13,  1905  (Laws  1905,  p.  317).  See  Wilson  v.  Cook,  256  111. 
460,  100  N.  E.  222,  43  L.  R.  A.  (N.  S.)  365".  Marriages  contracted  prior  to 
that  date  are  valid.  Port  v.  Port,  70  111.  484;  McKenna  v.  McKenna,  180 
111.  577,  54  N.  E,  641. 

Kentucky — Common-law  marriages  contracted  since  1852  are  not  valid. 
Estill  v.  Rogers,  64  Ky.  (1  Bush)  62;  Klenke  v.  Noonan,  118  Ky.  436,  81  S. 
W.  241.  See  Rev.  St.  1852,  c.  47,  §  2 ;  Carroll's  Ky.  St.  1915,  §  2097.  Such 
marriages  were  valid  prior  to  1852.  See  Donnelly  v.  Donnelly's  Heirs, 
47  Ky.  (8  B.  Mon.)  113. 

Louisiana — Johnson's  Heirs  v.  Raphael,  117  La.  967,  42  South.  470.  See 
Civil  Codes  1825  and  1870.  While  Louisiana  was  a  Spanish  colony,  and  up 
to  1825,  celebration  by  a  priest  was  not  necessary.  The  decree  of  the  Coun- 
cil of  Trent  was  not  extended  to  tha  Spanish  colonies  in  America.  Succes- 
sion of  Prevost,  4  La.  Ann.  347. 

Maine — Though  the  question  has  not  been  decided  by  the  courts  of  Maine, 
probably  common-law  marriages  would  not  be  recognized.  The  law  regard- 
ing marriages  is  similar  to  that  of  Massachusetts.  State  v.  Hodgskins,  19 
Me.  156,  36  Am.  Dec.  742. 

Maryland — Denison  v.  Denison,  35  Md.  361. 

Massachusetts — Milford  v.  Worcester,  7  Mass.  48;  Norcross  v.  Norcross, 
155  Mass.  425,  29  N.  E.  506. 

New  Hampshire — Dunbarton  v.  Franklin,  19  N.  H.  25T.  But  see  Pub.  St. 
1901,  c.  174,  §  lou 

North  Carolina — Pell's  Revisal  1908,  §  2081 ;  State  v.  Wilson,  121  N.  C.  650, 
28  S.  E.  416. 

North  Dakota — Schumacher  v.  Great  Nor.  R.  Co.,  23  N.  D.  231,  136  N.  W. 
85.  Common-law  marriages  were  valid  prior  to  July  1,  1890. 

Tennessee — Bashaw  v.  State,  1  Yerg.  177;  State  v.  Bank,  115  Tenn.  12, 
89  S.  W.  392. 

Utah — Common-law  marriages  contracted  since  the  Act  of  March  8,  1888 
(Laws  1888,  p.  88)  are  invalid.  Prior  to  that  act  they  were  valid.  See  Hil- 
ton v.  Roylauce,  25  Utah,  129,  69  Pac.  660,  58  L.  R,  A.  723,  95  Am.  St.  Rep. 
821. 

Vermont — Northfield  v.  Plymouth,  20  Vt.  582;  Morrill  v.  Palmer,  68  Vt. 
1,  33  Atl.  829,  33  L.  R.  A.  411. 

Virginia— Offield  v.  Davis,  100  Va.  250,  210  S.  E.  910. 

Washington — In  re  McLaughlin's  Estate,  4  Wash.  570,  30  Pac.  651,  16  L. 

60  See  note  50  on  following  page. 


42  MARRIAGE  (Ch.  1 

Subject  to  the  qualification  that  in  some  states  cohabitation  fol- 
lowing the  agreement  is  essential,  it  may  be  stated  as  the  general 
rule  that,  in  those  states  where  no  formalities  of  celebration  are 

R.  A.  699;    Summerville  v.  Summerville,  31  Wash.  411,  72  Pac.  84;    Meton 
v.  State  Industrial  Ins.  Dept.,  104  Wash.  652,  177  Pac.  696. 

West  Virginia— Beverliu  v.  Beverlin,  29  W.  Va.  732,  3  S.  E.  38. 

Wisconsin — Common-law  marriages  are  invalid  since  January  1,  1918,  by 
virtue  of  Acts  1917,  c.  218,  §  3.  Prior  to  that  date  they  were  valid. 

Common-law  marriages  are  not  valid  in  the  Philippine  Islands  or  In  Porto 
Rico. 

s oAlabama— Campbell  v.  Gullatt,  43  Ala.  57;  Herd  v.  Herd,  194  Ala.  613, 
69  South.  885,  L.  R.  A.  1916B,  1243. 

Colorado— Klipfel  v.  Klipfel,  41  Colo.  40,  92  Pac.  26,  124  Am.  St.  Rep. 
96;  Mock  v.  Chaney,  36  Colo.  60,  SrPac.  538. 

District  of  Columbia— Travers  v.  Reinhardt,  25  App.  D.  C.  567  (dictum). 

Florida— Daniel  v.  Sams,  17  Fla.  487;  Warren  v.  Warren,  66  Fla.  138, 
63  South.  726. 

Georgia — Common-law  marriages  valid,  except  for  a  short  period  between 
January  1,  1862,  and  December  14,  1863,  during  which  period  Code  1861,  § 
1658,  was  in  force.  Askew  v.  Dupree,  30  Ga.  173;  Smith  v.  Reed,  145  Ga. 
724,  89  S.  E.  815,  L.'  R.  A.  1917A,  492. 

Hawaii — Jacobs  v.  Cummins,  4  Hawaii,  113;  Godfrey  v.  Rowland,  16  Ha- 
waii, 377.  And  see  United  States  v.  Lee  Sa  Kee,  3  U.  S.  Dist.  Ct.  of  Hawaii, 
265. 

Idaho— Huff  v.  Huff,  20  Idaho,  450,  118  Pac.  1080. 

Indiana— Teter  v.  Teter,  101  Ind.  129,  51  Am.  Rep.  742. 

Indian  Territory — Common-law  marriages  contracted  in  Indian  Territory, 
before  it  became  part  of  Oklahoma  in  1907,  are  valid.  Davis  v.  Pryor,  3 
Ind.  T.  398,  58  S.  W.  660;  Id.,  112  Fed.  274,  50  C.  C.  A.  579;  Porter  v.  U.  S. 
7  Ind.  T.  616,  104  S.  W.  855.  And  see  Clarkson  v.  Washington,  38  Okl.  4, 
131  Pac.  935. 

loioa — Blanchard  v.  Lambert,  43  Iowa,  228,  22  Am.  Rep.  245;  Pegg  v. 
Pegg,  138  Iowa,  572,  115  N.  W.  1027. 

Kansas— State  v.  Walker,  36  Kan.  297,  12  Pac.  279,  59  Am.  Rep.  556; 
Schuchart  v.  Schuchart,  61  Kan.  597,  60  Pac.  311,  50  L.  R.  A.  180,  78  Am. 
St.  Rep.  342. 

Michigan— Hutchins  v.  Kimmell,  31  Mich.  126,  18  Am.  Rep.  164;  Su- 
preme Tent  v.  McAllister,  132  Mich.  69,  92  N.  W.  770,  102  Am.  St.  Rep.  382. 

Minnesota — State  v.  Worthingham,  23  Minn.  528;  Hulett  v.  Carey,  66 
Minn.  327,  69  N.  W.  31,  34  L.  R.  A.  384,  61  Am.  St.  Rep.  419. 

Mississippi — Hargroves  v.  Thompson,  31  Miss.  211 ;  Howard  v.  Kelley, 
111  Miss.  285,  71  South.  381,  Ann.  Cas.  1918E,  1230.  There  is,  however,  some 
doubt  whether  common-law  marriages  contracted  between  November  1,  1892, 
when  the  Code  of  1892  went  into  effect,  and  October  1,  1906,  when  the  Code 
of  1906  went  into  effect,  are  valid.  See  Howard  v.  Kelley,  supra. 

Missouri — Dyer  v.  Brannock,  66  Mo.  391,  27  Am.  Rep.  359;  State  v.  Bit- 
tick,  103  Mo.  183,  15  S.  W.  325,  11  L.  R.  A.  587,  23  Am.  St.  Rep.  869.  But  see 
Act  Mar.  31,  1921,  declaring  common-law  marriages  void. 

Montana— Rev.  Codes  1907,  §  3607. 

Nebraska—  Gibson  v.  Gibson,  24  Neb.  434,  39  N.  W.  450;  University  of 
Michigan  v.  McGuckin,  62  Neb.  489,  87  N.  W.  180,  57  L.  R.  A.  917,  Cooley 
Cas.  Persons  and  Domestic  Relations,  6;  Id.,  64  Neb.  300,  89  N.  W.  778,  57 


§§  19-21)  FORMALITIES  IN   CELEBRATION  43 

required,  all  that  is  necessary  to  constitute  a  valid  marriage  is 
that  the  parties  shall  consent  and  agree  to  assume  the  relation  of 
husband  and  wife  presently.  This  is  known  as  marriage  "per  verba 

L.  R.  A.  917,  Cooley  Cas.  Persons  and  Domestic  Relations,  6;  Goad  v.  Goad, 
87  Neb.  290,  127  N.  W.  455. 

Nevada— State  v.  Zichfield,  23  Nev.  304,  46  Pac.  802,  34  L.  R.  A.  784,  62 
Am.  St.  Rep.  800. 

New  Jersey— Applegate  v.  Applegate,  45  N.  J.  Eq.  118,  17  Atl.  293;  State 
v.  Thompson,  76  N.  J.  Law,  197,  68  Atl.  1068. 

Neiv  Mexico — Common-law  marriages  contracted  prior  to  January  1,  1906, 
are  probably  valid.  As  to  marriages  contracted  since  that  date  there  is 
some  doubt.  See  Code  1915,  §  3444. 

New  York — Clayton  v.  Warden,  4  N.  Y.  230;  Ziegler  v.  Cassidy,  220  N. 
Y.  98,  115  N.  E.  471,  Ann.  Cas.  1917E,  248.  But  common-law  marriages 
could  not  be  legally  contracted  between  January  1,  1902,  and  January  1, 
1908.  See  Laws  1901,  c.  339,  repealed  by  Laws  1907,  c.  942,  §  6.  And  see 
In  re  Biersack,  96  Misc.  Rep.  161,  159  N.  Y.  Supp.  519;  In  re  Hinman,  147 
App.  Div.  452,  131  N.  Y.  Supp.  861.  Common-law  marriages  on  the  high 
seas  within  the  three-mile  limit  are  valid.  In  re  Spondre,  98  Misc.  Rep. 
524,  162  N.  Y.  Supp.  943. 

Ohio — Carmichael  v.  State,  12  Ohio  St.  553 ;  Unbenhower  v.  Labus,  85  Ohio 
St.  238,  97  N.  E.  832. 

Oklahoma— Reaves  v.  Reaves,  15  Okl.  240,  82  Pac.  490,  2  L.  R.  A.  (N.  S.) 
353 ;  In  re  Love's  Estate,  42  Okl.  478,  142  Pac.  305,  L.  R.  A.  1915E,  109. 

Oregon — Estate  of  Megginson,  21  Or.  387,  28  Pac.  388,  14  L.  R.  A.  540 
(dictum).  But  see  Holmes  v.  Holmes,  Fed.  Cas.  No.  6,638. 

Pennsylvania — Guardians  of  the  Poor  v.  Nathans,  2  Brews.  (Pa.)  149; 
Richard  v.  Brehm,  73  Pa.  140,  13  Am.  Rep.  733 ;  In  re  McCausland,  213  Pa. 
189,^62  Atl.  780,  110  Am.  St.  Rep.  540. 

Philippine  Islands — Common-law  marriages  are  not  valid.  General  Order 
No.  68,  promulgated  by  military  governor  December  18,  1899.  Solicitor 
General  Araneta,  in  opinion  December  20,  1905  (2  Op.  Atty.  Gen.  P.  I.), 
states  that  prior  to  the  promulgation  of  General  Order  68  marriage  was 
^celebrated  according  to  canonical  laws,  and  that  "the  general  order  does 
not  recognize  the  common-law  marriage."  This  order1  is  still  in  force.  St. 
1907,  §§  3770-3773. 

Rhode  Island — Validity  of  common-law  marriages  has  not  been  definitely 
decided ;  but,  if  the  question  were  squarely  presented,  such  marriages  would 
probably  be  held  valid.  See  Wrynn  v.  Downey,  27  R,  I.  454,  63  Atl.  401,  4 
L.  R.  A.  (N.  S.)  615,  114  Am.  St.  Rep.  63,  8  Ann.  Cas.  912.  And  see  Math- 
ewson  v.  Phoenix  Iron  Foundry  (C.  C.)  20  Fed.  281. 

South  Carolina — Fryer  v.  Fryer,  Rich.  Eq.  Cas.  85 ;  Rutledge  v.  Tunns, 
69  S.  C.  400,  48  S.  E.  287. 

South  Dakota— Civil  Code  1913,  §§  34-59. 

Texas — Rice  v.  Rice,  31  Tex.  174;  Edelstein  v.  Brown,  100  Tex.  403,  100 
S.  W.  129,  123  Am.  St.  Rep.  816;  Grigsby  v.  Reib,  105  Tex.  597,  153  S. 
W.  1124,  L.  R.  A.  1915E,  1,  Ann.  Cas.  1915C,  1011,  affirming  (Tex.  Civ.  App.) 
139  S.  W.  1027. 

Wisconsin — Common-law  marriages  contracted  prior  to  January  1,  1918,  are 
valid,  but  by  Acts  1917,  c.  218,  §  3,  such  marriages  are  made  invalid.  As 
to  marriages  prior  to  that  date,  see  Williams  v.  Williams,  46  Wis.  464,  I 


44  MARRIAGE  (Ch.  1 

de  praesenti."  B1     The  essential  element  is  that  the  minds  of  the 
parties  have  met  in  mutual  assent  to  the  marriage.62 

It  is  sometimes  said  that  a  common-law  marriage  may  be  effected 
"per  verba  de  futuro  cum  copula" — that  is  to  say,  by  an  agreement 
to  marry  in  the  future,  followed  by  intercourse  in  pursuance  there- 
of.53 But  this  statement  is  too  broad.  A  mere  agreement  to  marry 
in  the  future,  though  followed  by  cohabitation,  is  not  a  marriage, 


N.  W.  98,  32  Am.  Rep.  722;  Becker  v.  Becker,  153  Wis.  226,  140  N.  \V. 
1082,  L.  R.  A.  1915E,  56. 

Wyoming — Weidenhoft  v.  Primm,  16  Wyo.  340,  94  Pac.  453. 

eiDickerson  v.  Brown,  49  Miss.  357;  Jewell  v.  Jewell,  1  How.  219,  11 
L.  Ed.  108;  Meister  v.  Moore,  96  U.  S.  76,  24  L.  Ed.  826;  Mathewson  v. 
Phoenix  Iron  Foundry  (C.  C.)  20  Fed.  281;  Teter  v.  Teter,  101  Ind.  129,  51 
Am.  Rep.  742;  Campbell's  Adm'r  v.  Gullatt,  43  Ala.  57;  Johnson  v.  John- 
son's Adm'r,  30  Mo.  72;  Butterfield  v.  Ennis,  193  Mo.  App.  638,  186  S.  W. 
1173 ;  State  v.  Bittick,  103  Mo.  183,  15  S.  W.  325,  11  L.  R.  A.  587,  23  Am. 
St.  Rep.  869;  Graham  v.  Bennet,  2  Cal.  503;  White,  v.  White,  82  Cal.  427, 
23  Pac.  276,  7  L.  R.  A.  799;  Smith  v.  People,  64  Colo.  290,  170  Pac.  959; 
Bowman  v.  Bowman,  24  111.  App.  165;  Com.  v.  Stump,  53  Pa.  132,  91  Am. 
Dec.  198 ;  Askew  v.  Dupree,  30  Ga.  173 ;  Bailey  v.  State,  36  Neb.  808,  55  N. 
W.  241;  Port  v.  Port,  70  111.  484;  Hebblethwaite  v.  Hepworth,  98  111.  126; 
Hutchins  v.  Kimmell,  31  Mich.  126,  IS  Am.  Rep.  164;  Williams  v.  Kilburn, 
88  Mich.  279,  50  N.  W.  293;  Carmichael  v.  State,  12  Ohio  St.  553;  Good- 
rich v.  Cushman,  34  Neb.  460,  51  N.  W.  1041;  Fenton  v.  Reed,  4  Johns. 
(N.  Y.)  52,  4  Am.  Dec.  244;  Jackson  v.  Winne,  7  Wend.  (N.  Y.)  47,  22  Am. 
Dec.  563;  Cheney  v.  Arnold,  15  N.  Y.  345,  69  Am.  Dec.  609;  Overseers  of 
Poor  of  Town  of  Newbury  v.  Overseers  of  Poor  of  Town  of  Brunswick, 
2  Vt.  151,  19  Am.  Dec.  703;  Hynes  v.  McDermott,  91  N.  Y.  451,  43  Am. 
Rep.  677;  Wilcox  v.  Wilcox,  46  Hun  (N.  Y.)  32;  Van  Tuyl  v.  Van  Tuyl,  57 
Barb.  (N.  Y.)  235 ;  Moller  v.  Sommer,  86  Misc.  Rep.  110,  149  N.  Y.  Supp.  103 ; 
Davidson  v.  Ream,  178  App.  Div.  362,  164  N.  Y.  Supp.  1037,  affirming  97 
Misc.  Rep.  89,  161  N.  Y.  Supp.  73;  Parker  v.  De  Bernard!,  40  Nev.  361,  164 
Pac.  645 ;  Thomas  v.  James  (Okl.)  171  Pac.  855 ;  Hargroves  v.  Thompson, 
31  Miss.  211 ;  Simon  v.  State,  31  Tex.  Cr.  R.  186,  20  S.  W.  399,  716,  37  Am. 
St.  Rep.  802 ;  Haggin  v.  Haggin,  35  Neb.  375,  53  N.  W.  209 ;  Dyer  v.  Bran- 
nock,  66  Mo.  391,  27  Am.  Rep.  359;  State  v.  Worthingham,  23  Minn.  528; 
Dumaresly  v.  Fishly,  3  A.  K.  Marsh.  (Ky.)  368;  Guardians  of  the  Poor 
v.  Nathans,  2  Brewst.  (Pa.)  149;  Town  of  Londonderry  v.  Town  of  Chester, 
2  N.  H.  268,  9  Am.  Dec.  61;  Blanchard  v.  Lambert,  43  Iowa,  228,  22  Am. 
Rep.  245;  Jackson  v.  Banister,  47  Tex.  Civ.  App.  317,  105  S.  W.  66;  Steves 
v.  Smith,  49  Tex.  Civ.  App.  126,  107  S.  W.  141;  Burnett  v.  Burnett  (Tex. 
Civ.  App.)  S3  S.  W.  238;  Bargna  v.  Bargna  (Tex.  Civ.  App.)  127  S.  W.  1156. 

sz  in  re  Boyington's  Estate,  157  Iowa,  467,  137  N.  W.  949;  Love  v.  Love 
<Iowa)  171  N.  W.  257 ;  Moller  v.  Sommer,  86  Misc.  Rep.  110,  149  N.  Y.  Supp. 
103,  judgment  affirmed  165  App.  Div.  990,  150  N.  Y.  Supp.  1097. 

632  Kent,  Comm.  87;  Askew  v.  Dupree,  30  Ga.  173  (dictum).  See,  also, 
In  re  McCausland's  Estate,  52  Cal.  568,  and  Patton  v.  Cities  of  Philadel- 
phia &  New  Orleans,  1  La.  Ann.  98.  In  both  of  these  cases,  however,  there 
was  evidence  of  a  present  marriage. 


§§  19-21)  FORMALITIES  IN   CELEBRATION  45 

unless  such  cohabitation  is  intended  and  understood  by  the  parties 
as  a  consummation  of  the  marriage,  and  as  converting-  the  execu- 
tory agreement  into  a  presejit  actual  marriage.5*  If  the  cohabita- 
tion is  not  in  consummation  of  the  marriage  agreement,  but  is 
commenced  in  reliance  upon  a  mere  promise  or  agreement  to  marry 
in  the  future,  a  marriage  per  verba  de  futuro  is  not  established.55 
The  true  doctrine  seems  to  be  that  an  agreement  to  marry  in  the 
future,  followed  by  copula,  is  at  best  only  prima  facie  evidence  of 
marriage,  and  that  the  prima  facie  case  may  be  rebutted  by  evi- 
dence, circumstantial  or  otherwise,  tending  to  show  that  there  was 
no  present  intent  or  agreement  at  the  time  of  the  copula  to  con- 
summate a  marriage  or  to  convert  the  executory  agreement  into  a 
present  actual  marriage.56 

A  marriage  per  verba  de  prsesenti  may  be  valid,  though  no  ex- 
press words  were  used.  All  that  is  necessary  is  that  the  parties 
shall  intend  to  marry,  and  that  their  intention  shall  appear  either 
by  their  words,  or  by  their  conduct.57  "As  the  law  stands,  a  valid 

64  Robertson  v.  State,  42  Ala.  509;  Hebblethwaite  v.  Hepworth,  98  111. 
126;  Lorimer  v.  Lorimer,  124  Mich.  631,  83  N.  W.  609;  Sorenson  v.  Soren- 
son,  68  Neb.  483;  94  N.  W.  540.  98  N.  W.  837,  100  N.  W.  930,  103  N.  W. 
455;  Hill  v.  State,  41  Ga.  484;  Cheney  v.  Arnold,  15  N.  Y.  345,  69  Am. 
Dec.  609;  Duncan  v.  Duncan,  10  Ohio  St.  181;  Grimm's  Estate,  131  Pa. 
199,  18  Atl.  1061,  6  L.  R.  A.  717,  17  Am.  St.  Rep.  796 ;  Fryer  v.  Fryer,  Rich. 
Eq.  Cas.  <S.  C.)  113. 

55  Hill  v.  State,  41  Ga.  484;  People  v.  Adams,  162  Mich.  371,  127  N.  W. 
354;  Sorensen  v.  Sorensen,  68  Neb.  500,  94  N.  W.  540,  98  N.  W.  837,  100 
N.  W.  930,  103  N.  W.  455 ;  Grimm's  Estate,  131  Pa.  199,  18  Atl.  1061,  6  D.  R. 
A.  717,  17  Am.  St.  Rep.  796. 

s«Reg.  v.  Millis,  10  Clark  &  F.  534;  Stoltz  v.  Doering,  112  111.  234; 
Peck  v.  Peck,  12  R.  I.  485,  34  Am.  Rep.  702;  Port  v.  Port,  70  111.  484; 
Cartwright  v.  McGown,  121  111.  388,  12  N.  E.  737,  2  Am.  St.  Rep.  105 ;  Heb- 
blethwaite v.  Hepworth,  98  111.  126.  See,  also,  Duncan  v.  Duncan,  10  Ohio  St. 
181,  and  Cheney  v.  Arnold,  15  N.  Y.  345,  69  Am.  Dec.  609.  The  agreement  per 
verba  de  futuro  must  be  followed  by  cohabitation.  Sorensen  v.  Sorensen,  68 
Neb.  483,  94  N.  W.  540.  98  N.  W.  837, 100  N.  W.  930,  103  N.  W.  455. 

87  Schouler,  Dom.  Rel.  §  26;  Dalrymple  v.  Dalrymple,  2  Hagg.  Consist. 
54;  Francis  v.  Francis,  31  Grat  (Va.)  283;  Hicks  v.  Cochran,  4  Edw.  Ch. 
(N.  Y.)  107;  Van  Tuyl  v.  Van  Tuyl,  57  Barb.  (N.  Y.)  237;  Dickerson  v. 
Brown,  49  Miss.  357;  Thomas  v.  James  (Okl.)  171  Pac.  855;  In  re  Wit- 
tick's  Estate,  164  Iowa,  485,  145  N.  W.  913;  Bowman  v.  Bowman,  24  111. 
App.  165;  Gise  v.  Com.,  81  Pa.  428;  Guardians  of  the  Poor  v.  Nathans, 
2  Brewst.  (Pa.)  149;  In  re  Wells'  Estate,  123  App.  Div.  79,  108  N.  Y.  Supp. 
164;  State  v.  Hansbrough,  181  Mo.  348,  80  S.  W.  900.  The  contract  requi- 
site to  the  creation  of  the  marriage  relation  need  not  be  expressed  in  any 
special  manner,  or  by  any  prescribed  form  of  words,  but  may  be  sufficiently 


46  MARRIAGE  (Ch.  1 

marriage,  to  all  intents  and  purposes,  is  established  by  proof  of  an 
actual  contract  per  verba  de  praesenti  between  persons  of  opposite 
sexes,  capable  of  contracting,  to  take  each  other  for  husband  and 
wife ;  especially  where  the  contract  is  followed  by  cohabitation.  No 
solemnization  or  other  formality,  apart  from  the  agreement  itself, 
is  necessary."  88  It  is  not  essential  that  the  contract  should  be  en- 
tered into  before  witnesses.89  The  agreement  being  the  essential 
element  in  these  marriages,  it  may,  like  any  other  agreement,  be 
proved  by  words  or  by  conduct,60  and  by  the  testimony  of  the 
parties  themselves  or  by  the  testimony  of  third  persons. 

It  has  also  been  held  that,  in  order  to  constitute  a  valid  marriage 
by  agreement,  it  is  not  essential  that  the  parties  should,  at  the  time 
the  agreement  is  entered  into,  be  in  the  presence  of  each  other  or 
even  in  the  same  jurisdiction.  Thus  it  has  been  said  that  the  agree- 
ment may  be  entered  into  by  letter.61  In  a  recent  case  62  the  United 
States  Circuit  Court  of  Appeals  sustained  a  marriage  where  the 
parties  were  in  different  jurisdictions  when  the  agreement  was  en- 
tered into.  The  plaintiff  brought  the  action  to  recover  for  the 
death  of  her  alleged  husband,  claiming  to  be  his  wife  by  common- 
law  marriage.  The  deceased  signed  in  Minnesota,  where  he  re- 
sided, a  contract  of  marriage  in  duplicate.  He  sent  both  copies  to 
the  plaintiff,  who  executed  them  in  Missouri,  returning  one  copy 
to  the  deceased  and  retaining  the  other.  It  did  not  appear  that 
the  parties  thereafter  lived  together.  The  court  said:  "The  state 

evidenced  by  any  clear  and  unambiguous  language  or  conduct  Reynold- 
son  v.  Reynoldson,  96/  Neb.  270,  147  N.  W.  844.  Where  the  words  claimed 
to  amount  to  a  contract  of  marriage  per  verba  de  praesenti  are  ambiguous, 
the  intent  of  the  parties  may  be  examined  into,  as  in  cases  of  other  con- 
tracts, and,  if  the  subsequent  conduct  clearly  indicates  that  they  intended 
matrimony,  they  are  legally  husband  and  wife.  Bey  v.  Bey  (N.  J.  Eq.) 
90  Atl.  684.  The  remarriage  of  divorced  parties  may  be  shown  by  proof  of 
facts  from  which  a  common-law  marriage  may  be  presumed.  Thomas  v. 
James  (Okl.)  171  Pac.  855. 

68  Van  Tuyl  v.  Van  Tuyl,  57  Barb.  (N.  Y.)  237. 

5 »  Da  vis  v.  Stouffer,  132  Mo.  App.  555,  112  S.  W.  282;  Van  Tuyl  v.  Van 
Tuyl,  57  Barb.  (N.  Y.)  237;  Umbenhour  v.  Umbenhour,  31  Ohio  Cir.  Ct.  R. 
317 ;  People  v.  Spencer,  199  Mich.  395,  165  N.  W.  921. 

60  See  post,  p.  49. 

«i  1  Bishop,  Marriage,  Divorce  and  Separation,  §§  323-325.  Written  con- 
tracts to  marry  were  involved  in  Mathewson  v.  Phoenix  Iron  Foundry  (C. 
C.)  20  Fed.  281,  and  in  Hulett  v.  Carey,  66  Minn.  327,  69  N.  W.  31,  34  L. 
R.  A.  384,  61  Am.  St.  Rep.  419.  See,  also,  Kahn  v.  Kahn,  62  Misc.  Rep. 
550,  115  N.  Y.  Supp.  1028,  construing  Laws  N.  Y.  1901,  c.  339. 

02  Great  Northern  Ry.  Co.  v.  Johuson,  254  Fed.  683,  166  C.  C.  A.  181. 

- 


§§  19-21)  FORMALITIES   IN   CELEBRATION  47 

of  Minnesota  recognizes  common-law  marriages,  but  the  contract 
is  governed  by  the  laws  of  the  state  of  Missouri,  where  acceptance 
by  plaintiff  of  the  contractual  offer  made  by  deceased  occurred. 
That     state     recognizes     and     enforces      common-law     marriages. 
*     *     *     In  approaching  the  proposition  that  the  parties  must  be 
together  or  within  the  same  jurisdiction,  it  is  to  be  noted  that  this 
matter  of  marriage  is  for  the  states,  except  in  the  District  of  Colum- 
bia and  the  territories,63  and  is  to  be  determined  by  the  law  of  the 
state  where  it  was  contracted  or  celebrated.64     So  far  as  the  law 
on  the  point  here  involved  has  been  defined  by  the  adjudications  of 
the  Missouri  courts,  it  will  be  followed,  irrespective  of  the  view 
which  might  be  taken  by  this  court,  if  the  question  were  open.    A 
careful  examination  of  the  above-cited  Missouri  cases,  and  of  many 
others  from  that  state,  convinces  that  in  that  state  the  marriage 
contract  possesses  the  elements  of  an  ordinary  contract  and  none 
others.     That  contract  establishes   a  very   important  status,   but 
the  contract  itself  is  in  no  respect  peculiar.    Mutual  assent  to  the 
present  institution  of  the  status  is  all  sufficient.    No  other  act,  such 
as  cohabitation,65  is  necessary  to  complete  the  institution  of  the 
status  where  the  mutual  assent  contemplates  a  marriage  in  praesenti. 
Why  should  the  physical  presence  of  the  parties  be  essential  to  the 
legality  of  this  contract,  any  more  than  of  any  other?    It  is  not  for 
us  to  devise  means  of  making  common-law  marriages  difficult.    It 
is  our  duty  to  recognize  the  law  as  it  exists.    Nor  is  there  any  rea- 
son why  the  parties  should  be  within  the  same  jurisdiction.     The 
existence  and  validity  of  the  contract  must  be  determined  by  the 
law  of  the  place  where  it  is  legally  regarded  as  made.    Here,  how- 
•ever,  there  is  no  point  in  the  suggestion,  for  both  of  the  states  in- 
volved approve  common-law  marriages." 

When  the  consent  to  marry  is  manifested  by  words  de  praesenti, 
a  present  assumption  of  the  marriage  status  is  necessary.86  The 

« 3  Davis  v.  Pryor  (8th  Cir.)  112  Fed.  274,  50  0.  C.  A.  379;  26  Cyc.  829, 
and  citations  In  notes  12  and  13  thereto. 

e*  26  Cyc.  829,  and  citations  in  note  14  thereto. 

es  Davis  v.  Stouffer,  132  Mo.  App.  555,  112  S.  W.  282. 

eeCartwright  v.  McGown,  121  111.  388,  12  N.  E.  739,  2  Am.  St.  Rep.  105; 
Hawkins  v.  Hawkins,  142  Ala.  571,  38  South.  640,  110  Am.  St.  Rep.  53; 
In  re  Svendsen's  Estate,  37  S.  D.  353,  158  N.  W.  410.  A  mere  agreement  tq 
become  husband  and  wife  without  a  present  intention  to  assume  that  rela- 
tion does  not  constitute  a  marriage;  it  being  essential  that  the  parties  in 
good  faith  bind  themselves  to  live  apart  from  all  others  during  their  joint 
lives.  Grigsby  v.  Reib  (Tex.  Civ.  App.)  139  S.  W.  1027. 


48  MARRIAGE  (Ch.  1 

marriage  must  be  complete  at  the  time  of  the  agreement,  and  not 
be  left  for  the  future.  It  is  not  sufficient  to  agree  to  present  co- 
habitation, and  a  future  regular  marriage  when  more  convenient, 
or  when  a  husband  or  wife  shall  die,  or  when  a  license  can  be  ob- 
tained, or  a  ceremony  can  be  performed ;  but  there  must  be  a  pres- 
ent marriage  by  the  agreement.67  The  rule  that  a  present  assump- 
tion of  the  marriage  status  is  necessary  to  constitute  a  valid  com- 
mon-law marriage  does  not,  according  to  the  weight  of  authority, 
mean  that  cohabitation  as  husband  and  wife  must  immediately 
follow  the  agreement,68  though  some  jurisdictions  hold  that  there 
is  no  marriage  unless  cohabitation  follows.69  As  cohabitation  is 
not  essential  in  a  ceremonial  marriage,70  there  is  no  reason  why, 
if  the  agreement  is  satisfactorily  proved,  cohabitation  should  be 
required  in  addition  to  the  agreement  in  common-law  marriages.71 

erCartwright  v.  McGown,  121  111.  388,  12  N.  E.  739,  2  Am.  St.  Rep.  105; 
In  re  Maher's  Estate,  204  111.  25,  68  N.  E.  159;  Reg.  v.  Millis,  10  Clark  & 
F.  534 ;  Robertson  v.  State,  42  Ala.  509 ;  ClarK  v.  Field,  13  Vt.  460 ;  Duncan 
v.  Duncan,  10  Ohio  St.  182;  Peck  v.  Peck,  12  R.  I.  485,  34  Am.  Rep.  702; 
Beverson's  Estate,  47  Cal.  621;  Fryer  v.  Fryer,  Rich.  Eq.  Gas.  (S.  C.)  85; 
Van  Tuyl  v.  Van  Tuyl,  57  Barb.  (N.  Y.)  235. 

« s  Great  Northern  Ry.  Co.  v.  Johnson,  254  Fed.  683,  166  C.  C.  A.  181; 
Green  v.  Green  (Fla.)  80  South.  739 ;  Askew  v.  Dupree,  30  Ga.  173  (dictum) ; 
Port  v.  Port,  70  111.  484;  Love  v.  Love  (Iowa)  171  N.  W.  257;  Hulett  v. 
Carey,  66  Minn.  327,  69  N.  W.  31,  34  L.  R.  A.  384,  61  Am.  St.  Rep.  419;  Shat- 
tuck  v.  Shattuck,  118  Minn.  60,  136  N.  W.  410;  Davis  v.  Stouffer,  132  Mo. 
App.  555,  112  S.  W.  282;  Dies  v.  Winne,  7  Wend.  (N.  Y.)  47,  22  Am.  Dec. 
563 ;  Davidson  v.  Ream,  97  Misc.  Rep.  89,  161  N.  Y.  Supp.  73 ;  Guardians  of 
Poor  v.  Nathans,  2  Brewst.  (Pa.)  149;  Richard  v.  Brehm,  73  Pa.  140,  13 
Am.  Rep.  735 ;  Rutledge  v.  Tunns,  69  S.  C.  400,  48  S.  E.  297. 

o»  Herd  v.  Herd,  194  Ala.  885,  69  South.  885,  L.  R.  A.  1916B,  1243;  Sharon 
v.  Sharon,  79  Cal.  633,  22  Pac.  26,  131;  Harron  v.  Harron,  128  Cal.  308,  60 
Pac.  932;  Taylor  v.  Taylor,  10  Colo.  App.  303,  50  Pac.  1049;  Lorimer  v. 
Lorimer,  124  Mich.  631,  83  N.  W.  809 ;  People  v.  Spencer,  199  Mich.  395,  165 
N.  W.  921 ;  O'Malley  v.  O'Malley,  46  Mont.  549,  129  Pac.  501,  Ann.  Cas.  1914B, 
662 ;  In  re  Svendsen's  Estate,  37  S.  D.  353,  158  N.  W.  410 ;  Grigsby  v.  Reib,  105 
Tex.  597,  153  S.  W.  1124,  L.  R.  A.  1915E,  1,  Ann.  Cas.  1915C,  1011,  affirming 
judgment  (Tex.  Civ.  App.)  139  S.  W.  1027;  Berger  v.  Kirby,  105  Tex.  611, 
153  S.  W.  1130,  51  L,  R.  A.  (N.  S.)  182,  affirming  judgment  (Tex.  Civ.  App.) 
135  S.  W.  1122;  Melton  v.  State,  71  Tex.  Cr.  R.  130,  158  6.  W.  550.  See, 
also,  Rev.  Codes  Idaho  1908,  §  2611.  A  "mutual  and  public  assumption  of 
the  marital  relation,"  within  Rev.  Codes  Mont.  §  3607,  defining  common- 
law  marriage,  means  a  course  of  conduct  on  the  part  of  both  man  and  wife 
toward  each  other  and  toward  the  world  so  that  people  generally  take 
them  to  be  married,  and  cohabitation  is  indispensable  thereto.  O'Malley 
v.  O'Malley,  46  Mont.  549, 129  Pac.  501,  Ann.  Cas.  1914B,  662. 

TO  Ante,  p.  39. 

7i  Shelf,  Mar.  &  Div.  5-7;  Dalrymple  v.  Dalrymple,  2  Hagg.  Consist.  54; 
Jackson  v.  Winne,  7  Wend.  (N.  Y.)  47,  22  Am.  Dec.  563 ;  Dumaresly  v.  Fish- 


§§  19-21)  FORMALITIES  IN   CELEBRATION  49 

It  is  generally  recognized  that  it  is  not  necessary  that  a  marriage 
be  consummated  by  intercourse,  because  "consensus,  non  con- 
cubitus,  facit  matrimonium." 

Cohabitation  and  Repute 

The  numerous  cases  in  which  the  question  of  the  validity  of  in- 
formal marriages  has  arisen  have  turned  principally  on  matters  of 
evidence,  as  to  whether  the  circumstances  of  the  case  and  the  con- 
duct of  the  parties  showed  present  consent.  It  is  a  question  of  fact, 
to  be  determined  from  all  the  circumstances  of  each  case,  whether 
the  parties  intended  marriage  or  not.  "A  mere  carnal  commerce, 
without  the  intention  of  cohabiting  and  training  up  children,  would 
not  constitute  marriage  under  any  circumstances."  72  Mere  cohabi- 
tation and  repute  do  not  in  themselves  constitute  marriage,73  but 
are  merely  facts  from  which  it  may  be  presumed  that  a  marriage 
was  entered  into.74  The  presumption  is  always  in  favor  of  mar- 
riage, and  acts  and  conduct  which  have  the  appearance  of  marriage 
will  be  construed  as  such,  unless  there  are  circumstances  which 
preclude  that  construction.75  So,  if  two  persons  live  together  as 

ly,  3  A.  K.  Marsh.  (Ky.)  368;  Port  v.  Port,  70  111.  484;  Peck  v.  Peck,  12 
R.  I.  485,  34  Am.  Rep.  702;  Hebblethwaite  v.  Hepworth,  98  111.  126;  Hil- 
ton v.  Roylance,  25  Utah,  129,  69  Pac.  660,  58  L.  R.  A.  723,  95  Am.  St.  Rep. 
821. 

72  Lindo  v.  Belisario,  1  Hagg.  Consist.  216;  Com.  v.  Stump,  53  Pa.  132, 
91  Am.  Dec.  198;  Van  Tuyl  v.  Van  Tuyl,  ,57  Barb.  (N.  Y.)  235;  State  v. 
Kennedy,  207  Mo.  528,  106  S.  W.  57;  Taylor  v.  Taylor,  10  Colo.  App.  303, 
50  Pac.  1049;  Lee  v.  State,  44  Tex.  Cr.  R.  354,  72  S.  W.  1005,  61  L.  R.  A. 
904. 

78  People  v.  Adams,  162  Mich.  371,  127  N.  W.  354 ;  In  re  Boyington's  Es- 
tate, 157  Iowa,  467,  137  N.  W.  949;  Gorden  v.  Gorden,  283  111.  182,  119  N. 
E.  312 ;  Tedder  v.  Tedder,  108  S.  C.  271,  94  S.  E.  19,  2  A.  L.  R.  438 ;  Nelson 
v.  State  (Tex.  Cr.  App.)  206  S.  W.  361;  Schwingle  v.  Keifer  (Tex.  Civ.  App.) 
135  S.  W.  194.  A  common-law  marriage  is  not  effected  by  occasional  co- 
habitation after  an  express  promise  to  have  a  marriage  ceremony  performed, 
which  is  not  fulfilled.  In  re  Gallery's  Estate,  226  Pa.  469,  75  Atl.  672. 

74  Qsborne  v.  Ramsay,  191  Fed.  114,  111  C.  C.  A.  594;  Moore  v.  Heineke, 
119  Ala.  627,  24  South.  374;  Norcross  v.  Norcross,  155  Mass.  425,  29  N.  E.' 
506;  Estes  v.  Merrill,  121  Ark.  361,  181  S.  W.  136;  In  re  Baldwin's  Es- 
tate,  162  Cal.  471,  123  Pac.  267;  In  re  Matteote's  Estate,  59  Colo.  566,  151 
Pac.  448;  In  re  Boyington's  Estate,  157  Iowa,  467,  137  N.  W.  949;  In  re 
Gallery's  Estate,  226  Pa.  469,  75  Atl.  672 ;  Severance  v.  Severance,  197  Mich. 
327,  163  N.  W.  924;  Bishop  v.  Brittain  Inv.  Co.,  229  Mo.  699,  129  S.  W. 
668,  Ann.  Cas.  1912A,  868 ;  State  v.  St.  John,  94  Mo.  App.  229,  68  S.  W.  374 ; 
O'Malley  v.  O'Malley,  46  Mont.  549,  129  Pac.  501,  Ann.  Cas.  1914B,  662; 
Houston  Oil  Co.  of  Texas  v.  Griggs  (Tex.  Civ.  App.)  181  S.  W.  833. 

7  5  Piers  v.  Piers,  2  H.  L.  Cas.  331;  Teter  v.  Teter,  101  Ind.  129,  51  Am. 
Rep.  742 ;  Dickerson  v.  Brown,  49  Miss.  357 ;  State  v.  Worthingham,  23  Minn. 
TIFF.P.&  D.REL.(3o  ED.)— 1 


50  MARRIAGE  (Ch.  1 

husband  and  wife,  holding  themselves  out  to  the  public  as  such, 
and  gain  the  reputation  in  the  community  of  being  married,  this 
is  very  generally  accepted  as  prima  facie  proof  of  marriage.78 
In  some  states  this  rule  is  expressly  stated  in  the  statutes.77 

Cohabitation,  necessary  to  raise  the  presumption  of  marriage, 
means,  to  live  or  dwell  together,  or  to  have  the  same  habitation.78 

528 ;  Hynes  v.  McDermott,  91  N.  Y.  451,  43  Am.  Rep.  677 ;  Guardians  of  the 
Poor  v.  Nathans,  2  Brewst.  (Pa.)  149;  Blanchard  v.  Lambert,  43  Iowa,  228, 
22  Am.  Rep.  245;  Linsey  v.  Jefferson  (Okl.)  172  Pac.  641;  Goad  v.  Coad,  87 
Neb.  290,  127  N.  W.^455. 

*« 1  Fraser,  Dom.  Rel.  113 ;  De  Thoren  v.  Attorney  General,  1  App.  Cas. 
686 ;  Davis  v.  Pryor,  112  Fed.  274,  50  C.  C.  A.  579 ;  U.  S.  v.  Engracio  Villa- 
fuerte,  et  al.,  4  Phil.  Rep.  559;  Gall  v.  Gall,  114  N.  Y.  109,  21  N.  E. 
106,  Cooley  Cas.  Persons  and  Domestic  Relations,  28;  Plattner  v.  Platt- 
ner,  116  Mo.  App.  405,  91  S.  W.  457;  Crainsey  v.  Sterling,  111  App. 
Div.  568,  97  N.  Y.  Supp.  1082 ;  Eames  v.  Woodson,  120  La.  1031,  46  South.  13 ; 
Green  v.  State,  59  Ala.  68;  Lowry  v.  Coster,  91  111.  182;  Proctor  v.  Bigelow, 
38  Mich.  282 ;  Redgrave  v.  Redgrave,  38  Md.  93 ;  Jones  v.  Reddick,  79 
N.  C.  290;  Com.  v.  Stump,  53  Pa.  132,  91  Am.  Dec.  198;  Hicks  v.  Cochral, 
4  Edw.  Ch.  (N.  Y.)  107 ;  White  v.  White,  82  Cal.  427,  23  Pac.  276,  7  L.  R.  A. 
799 ;  Richard  v.  Brehm,  73  Pa.  140,  13  Am.  Rep.  733 ;  Fornshill  v.  Murray, 

1  Bland  (Md.)  479,  18  Am.  Dec.  344 ;    Taylor  v.  Swett,  3  La.  33,  22  Am.  Dec. 
156;    Arthur  v.  Broadnax,  3  Ala.  557,  37  Am.  Dec.  707;    Chiles  v.  Drake, 

2  Mete.  (Ky.)  146,  74  Am.  Dec.  406 ;   Allen  v.  Hall,  2  Nott  &  McC.  (S.  O.)  114, 
10  Am.  Dec.  578;   Holmes  v.  Holmes,  6  La.  463,  26  Am.  Dec.  482;    Sneed  v. 
Ewing,  5  J.  J.   Marsh.  (Ky.)   460,   22  Am.  Dec.   41;     Stevenson's  Heirs  v. 
McReary,  12  Smedes  &  M.   (Miss.)  9,  51  Am.  Dec.  102;    Sprung  v.  Morton 
(D.   C.)  182   Fed.  330;    Farmery.  Towers,   106  Ark.  123,   152   S.   W.-  993; 
Smith  v.  People,  64  Colo.  290,  170  Pac.  959 ;    Love  v.  Love  (Iowa)  171  N.  W. 
257;    Jackson  v.  Claypool,  179  Ky.  662,  201   S.  W.  2;    Rockcastle  Mining, 
Lumber  &  Oil  Co.  v.  Baker,  167  Ky.  66,  179  S.  W.  1070 ;    Marzette  v.  Cronk, 
141  La.  437,  75  South.  107 ;   In  re  Fitzgibbons'  Estate,  162  Mich.  416,  127  N. 
W.  313,  139  Am.  St  Rep.  570;    In  re  Biersack,  96  Misc.  Rep.  161,  159  N. 
Y.  Supp.  519 ;  In  re  Hinman,  147  App.  Div.  452,  131  N.  Y.  Supp.  861 ;   Forbes 
v.  Burgess,  158  N.  O.  131,  73  S.  E.  792;    Coleman  v.  James  (Okl.)  169  Pac. 
1064;    Clarkson  v.  Washington,  38  Okl.  4,  131  Pac.  935;    In  re  Meade's  Es- 
tate, 82  W.  Va.  650,  97  S.  E.  127;    Suter  v.  Suter,  68  W.  Va.  690,  70  S.  E. 
705,  Ann.  Cas.  1912B,  405.     Reputation  and  cohabitation  are  not  competent 
to  prove  marriage,   in  an   action   for   criminal   conversation.-    -Frederick   v. 
Morse,  88  Vt.  126,  92  Atl.  16.    Nor  in  a  prosecution  for  bigamy.    U.  S.  v.  Evan- 
gelista,  29  Phil.  Rep.  215. 

77  For  example,  see  Act  Alaska,  May  3,  1917,  c.  56,  §  14;   Civ.  Code  Ariz. 
1901,  par.  3098;  Pub.  St  N.  H.  1901,  c.  174,  §  15;   Code  Civ.  Proc.  Cal.  §  1963. 
Presumption  of  marriage  from  conduct,  declared  by  Code  Civ.  Proc.  §  1963. 
subd.  30,  can  have  no  effect  where  it  appears  that  the  only  attempt  to  marry 
was  illegal  and  void;    a  legal  solemnization  being  necessary   under   Civ. 
Code,  §  55.    In  re  Elliott's  Estate,  165  Cal.  339,  132  Pac.  439. 

78  O'Malley  v.   O'Malley,  46  Mont.   549,   129   Pac.  501,    Ann    Cas.   1914B, 
662;    Bishop  v.  Brittain  Inv.  Co.,  229  Mo.  699,  129  S.  W.  668,  Ann.  Cas. 
1912A,  868. 


§§  19-21)  FOKMALITIES  IN   CELEBRATION  51 

No  fixed  or  continuous  period  of  time  of  cohabitation  is,  however, 
necessary.78  Repute  is  of  significance  only  in  so  far  as  it  tends  to 
show  the  intent  of  the  parties,  and  consequently  a  divided  opinion 
as  to  repute  is  without  probative  force.80 

Cohabitation  and  repute  may  be  shown  for  the  purpose  of  raising 
the  presumption  of  a  prior  ceremonial  marriage,81  and  also  to  es- 
tablish the  existence  of  a  common-law  marriage,  especially  where 
at  the  time  a  ceremonial  marriage  was  attempted,  or  an  agreement 
per  verba  de  prsesenti  was  entered  into,  there  was  some  impediment 
to  a  valid  marriage,  such  as  the  existence  of  a  living  spouse  un- 
divorced.  In  many  jurisdictions  the  continued  cohabitation  of  the 
parties  after  the  removal  of  the  impediment  raises  the  presumption 
of  a  valid  common-law  marriage.82 

™  Walton  v.  Walton  (Tex.  Civ.  App.)  203  S.  W.  133. 

so  In  re  Boyington's  Estate,  157  Iowa,  467,  137  N.  W.  949.  Repute  and 
cohabitation,  necessary  at  common  law  to  create  a  presumption  of  marriage, 
must  be  uniform  and  general,  and  can  be  established  only  by  open  and 
undoubted  acts  of  the  parties.  In  re  Baldwin's  Estate,  162  Cal.  471,  123 
Pac.  267 ;  In  re  Patterson's  Estate,  237  Pa.  24,  85  Atl.  75. 

si  Weathera!!  v.  Weatherall,  56  Wash.  344,  105  Pac.  822  (lack  of  au- 
thority of  person  solemnizing  marriage).  Harlan  v.  Harlan  (Tex.  Civ.  App.) 
125  S.  W.  950  (failure  to  obtain  license). 

82  In  re  Wells'  Estate,  123  App.  Div.  79,  108  N.  Y.  Supp.  164,  affirmed  194 
N.  Y.  548,  87  N.  E.  1129;  Fenton  v.  Reed,  4  Johns.  (N.  Y.)  52,  4  Am.  Dec. 
244;  Hay  wood  v.  Nichols,  99  Kan.  138,  160  Pac.  982;  Wilson  v.  Burnett, 
105  Misc.  Rep.  279,  172  N.  Y.  Supp.  673 ;  Prince  v.  Edwards,  175  Ala.  532,  57 
South.  714;  Adger  v.  Ackerman,  115  Fed.  124,  52  C.  C.  A.  568;  Poole  v. 
People,  24  Colo.  510,  52  Pac.  1025,  65  Am.  St.  Rep.  245 ;  Smith  v.  Reed,  145 
Ga.  724,  89  S.  E.  815,  L.  R.  A.  1917A,  492;  Huff  v.  Huff,  20  Idaho,  450, 
118  Pac.  1080 ;  Schaffer  v.  Krestovnikow,  89  N.  J.  Eq.  549,  105  Atl.  239,  af- 
fifming  88  N.  J.  Eq.  523,  103  Atl.  913,  88  N.  J.  Eq.  192,  102  Atl.  246;  Teter 
v.  Teter,  101  Ind.  129,  51  Am.  Rep.  742;  Schuchart  v.  Schuchart,  61  Kan. 
597,  60  Pac.  311,  50  L.  R.  A.  180,  78  Am.  St,  Rep.  342;  In  re  Fitzgibbons' 
Estate,  162  Mich.  416,  127  N.  W.  313,  139  Am.  St.  Rep.  570;  Barker  v. 
Valentine,  125  Mich.  336,  84  N.  W.  297,  51  L.  R.  A.  787,  84  Am.  St.  Rep. 
578;  State  v.  Worthingham,  23  Minn.  528;  Busch  v.  Supreme  Tent,  81  Mo. 
App.  562;  University  of  Michigan  v.  McGuckin,  62  Neb.  489,  67  N.  W.  180, 
57  L.  R.  A.  917,  Cooley  Cas.  Persons  and  Domestic  Relations,  6;  Eaton  v. 
Eaton,  66  Neb.  676,  92  N.  W.  995,  60  L.  R.  A.  605,  1  Ann.  Cas.  199 ;  Parker 
v.  De  Bernard!,  40  Nev.  361,  164  Pac.  645;  Chamberlain  v.  Chamberlain,  68 
N.  J.  Eq.  736,  82  Atl.  680,  3  L.  R.  A.  (N.  S.)  244,  111  Am.  St.  Rep.  658;  In 
re  McCausland,  213  Pa.  189,  62  Atl.  780,  110  Am.  St.  Rep.  540;  Davis  v. 
Whitlock,  90  S.  C.  233,  73  S.  E.  171,  Ann.  Cas.  1913D,  538 ;  Gorman  v.  Gorman 
(Tex.  Civ.  App.)  366  S.  W.  123;  Edelstein  v.  Brown,  100  Tex.  403,  100  S.  W. 
129,  123  Am.  St.  Rep.  816.  See  Code  Iowa  1897,  §  3151;  Rev.  Laws  Mass. 
c.  151,  §  6;  St.  Wis.  1917,  §  2339n24.  But  see  Compton  v.  Benham,  44 
Ind.  App.  51,  85  N.  E.  365 ;  People  v.  Shaw,  259  111.  544,  102  N.  E.  1031,  L. 
R.  A.  1915E,  87;  Blanks  v.  Southern  Ry.  Co.,  82  Miss.  703,  35  South.  570; 


52  MARRIAGE  (Ch.  1 

The  rule  is  probably  applicable  only  in  cases  where  the  parties, 
or  at  least  one  of  them,  acted  in  good  faith  and  in  ignorance  of  the 
existence  of  the  impediment.  It  has  been  held  in  several  cases 
that,  if  the  parties  knew  of  the  impediment,  their  relations  were 
meretricious,  and  the  presumption  is  that  the  illicit  relation  con- 
tinued.88 The  presumption  of  the  existence  of  a  valid  marriage 
thus  arising  from  cohabitation  and  repute  does  not  involve  an  as- 
sumption that  the  marriage  took  place  at  any  particular  place  or 
time,  or  in  any  particular  manner,  but  merely  that  a  legal  marriage 
existed.8* 

Presumption  Not  Conclusive 

Though  the  presumption  of  marriage  arising  from  cohabitation 
and  repute  is  very  strong,  it  is  not  conclusive,  but  may  be  re- 
butted.85 The  presumption  is  rebutted,  for  instance,  by  proof  that 
the  parties  separated  without  apparent  cause,  and  one  of  them 
married  some  other  person.86  The  presumption  does  not  arise,  or 
is  rebutted  and  overcome,  if  it  appears  that  the  cohabitation  was 
meretricious  in  its  inception,  and,  when  shown  to  have  been  illicit 
in  its  origin,  it  will  be  presumed,  in  the  absence  of  anything  show- 
ing otherwise,  that  its  continuance  was  illegal;  and  the  burden 
is  on  the  person  setting  up  the  marriage  to  show  it  independently 

Hilliard  v.  Baldwin,  76  N.  H.  142,  SO  Atl.  139;  Hall  v.  Industrial  Commis- 
sion, 165  Wis.  364,  162  N.  W.  312,  L.  R.  A.  1917D,  829.  But  the  rule  in 
Wisconsin  is  probably  changed  by  Rev.  St.  1917,  §  2339n24. 

83  Voorhees  v.  Voorhees,  46  N.  J.  Eq.  411,  19  Atl.  172,  19  Am.  St.  Rep. 
404;  Foster  v.  Hawley,  8  Hun  (N.  Y.)  68;  Duncan  v.  Duncan,  10  Ohio  St. 
181;  Clark  v.  Barney,  24  Okl.  455,  103  Pac.  598;  Hunt's  Appeal,  86  Pa. 
294;  In  re  Morris'  Estate,  92  Misc.  Rep.  630,  157  N.  Y.  Supp.  472.  But 
see  University  of  Michigan  v.  McGuckin,  62  Neb.  489,  87  N.  W.  180,  57  L. 
R.  A.  917,  Cooley  Cas.  Persons  and  Domestic  Relations,  6. 

s*  In  re  Hinman,  147  App.  Div.  452,  131  N.  Y.  Supp.  861. 

8ft  Forbes  v.  Countess  of  Strathmore,  Ferg.  Const.  113;  Reg.  v.  Millis,  10 
Clark  &  F.  534,  782 ;  Robertson  v.  State,  42  Ala.  509 ;  Port  v.  Port,  70  111.  484 ; 
Jackson  v.  Winne,  7  Wend.  (N.  Y.)  47,  22  Am.  Dec.  563 ;  Peck  v.  Peck,  12  R. 
I.  488,  34  Am.  Rep.  702;  Stoltz  v.  Doering,  112  111.  234;  Hebblethwaite  v. 
Hepworth,  98  111.  126 ;  Dumaresly  v.  Fishly,  3  A.  K.  Marsh.  (Ky.)  368 ;  Shar- 
on v.  Sharon,  79  Cal.  633,  22  Pac.  26 ;  Van  Tuyl  v.  Van  Tuyl,  57  Barb.  (N.  Y.) 
235;  Eames  v.  Woodson,  120  La.  1031,  46  South.  13;  Nelson  v.  Carlson,  48 
Wash.  651,  94  Pac.  477;  In  re  Hinman,  147  App.  Div.  452,  131  N.  Y.  Supp. 
£61 ;  In  re  Baldwin's  Estate,  162  Cal.  471,  123  Pac.  267 ;  Le  Suer  v.  Le  Suer, 
122  Minn.  407,  142  N.  W.  593;  Meehan  v.  Edward  Valve  &  Mfg.  Co.,  65  Ind. 
App.  342,  117  N.  E.  265. 

se  Weatherford  v.  Weatherford,  20  Ala.  548,  56  Am.  Dec.  206;  Jones  v. 
Jones.  48  Md.  391,  30  Am.  Rep.  466;  In  re  Campbell's  Estate,  12  Cal.  App. 
707, 108  Pac.  669,  rehearing  denied  12  Cal.  App.  707, 108  Pac.  676. 


§§  19-21)  FORMALITIES  IN   CELEBRATION  53 

of  the  presumption.87  But  the  presumption  that  the  relations  orig- 
inally meretricious  continue  to  be  illicit  may  itself  be  overcome  by 
positive  evidence.88  Thus  it  has  been  held  in  New  Jersey  that  a 
cohabitation  meretricious  in  its  origin  became  matrimonial  when, 
on  information  of  the  death  of  the  woman's  first  husband,  remov- 
ing the  only  impediment  to  the  marriage,  the  man  declared  to  her 
that  she  was  his  wife,  and  thereafter  both  by  habit,  conduct,  and 
declarations  both  held  themselves  out  as  husband  and  wife.89 

**  Cartwright  v.  McGbwn,  121  111.  388,  12  N.  B.  737,  2  Am.  St.  Rep.  105; 
Duncan  v.  Duncan,  10  Ohio  St.  181 ;  Cheney  v.  Arnold,  15  N.  Y.  345,  69  Am. 
Dec.  609;  Floyd  v.  Calvert,  53  Miss.  37;  Randlett  v.  Rice,  141  Mass.  385,  6 
N.  E.  238 ;  Harbeck  v.  Harbeck,  102  N.  Y.  714,  7  N.  E.  408 ;  Appeal  of  Read- 
ing Fire  Ins.  &  Trust  Co.,  113  Pa.  204,  6  Atl.  62,  5>7  Am.  Rep.  448;  In  re 
Gall's  Will  (Sur.)  9  N.  Y.  Supp.  466;  Cram  v.  Burnham,  5  Greenl.  (Me.) 
213,  17  Am.  Dec.  218 ;  Peck  v.  Peck,'  12  R.  I.  485,  34  Am.  Rep.  702 ;  Port  v. 
Port,  70  111.  484;  Stans  v.  Baitey,  9  Wash.  115,  37  Pac.  316;  Van  Dusan 
v.  Van  Dusan.  97  Mich.  70,  56  N.  W.  234;  Pearce  v.  Pearce,  16  S.  W.  271, 
13  Ky.  Law  Rep.  67;  Drawdy  v.  Hesters,  130  Ga.  161,  60  S.  E.  451,  15  L. 
R.  A.  (N.  S.)  190;  Adger  v.  Ackerman,  115  Fed.  124,  52  C.  C.  A.  568;  Pike 
v.  Pike,  112  111.  App.  243 ;  Marks  v.  Marks,  108  111.  App.  371 ;  Bell  v.  Clarke, 
45  Misc.  Rep.  272,  92  N.  Y.  Supp.  168;  Weatherall  v.  Weatherall,  63  Wash. 
526,  115  Pac.  1078;  In  re  Farley's  Estate,  91  Misc.  Rep.  185,  155,N.  Y.  Supp. 
63 ;  In  re  Eichler,  84  Misc.  Rep.  667,  146  N.  Y.  Supp.  846 ;  Bellinger  v.  De- 
vine,  269  111.  72,  109  N.  E.  666;  Bey  v.  Bey,  83  N.  J.  Eq.  239,  90  Atl.  684; 
Spencer  v.  Spencer.  84  Misc.  Rep.  264,  147  N.  Y.  Supp.  Ill;  Wilson  v.  Bur- 
nett, 105  Misc.  Rep.  279,  172  N.  Y.  Supp.  673;  In  re  Svendsen's  Estate,  37 
S.  D.  353.  158  N.  W.  410;  Moller  v.  Sommer,  86  Misc.  Rep.  110,  349  N.  Y. 
Supp.  103,  judgment  affirmed  165  App.  Div.  990,  150  N.  Y.  Supp.  1097; 
Howard  v.  Kelly,  111  Miss.  285,  71  South.  391,  Ann.  Gas.  1918E,  1230;  In  re 
Fuller's  Estate,  250  Pa.  78,  95  Atl.  382;  In  re  Boyington's  Estate,  157  Iowa, 
467,  137  N.  W.  949;  Gorden  v.  Gorden,  283  111.  182,  119  N.  E.  312;  In  re 
.Patterson's  Estate,  237  Pa.  24,  85  Atl.  75 ;  Meehan  v.  Edward  Valve  &  Mfg. 
Co.,  65  Ind.  App.  342,  117  N.  E.  265 ;  Voorhees  v.  Voorhees,  46  N.  J.  Eq.  411, 
19  Atl.  172;  19  Am.  St.  Rep.  404 ;  Clark  v.  Barney,  24  Okl.  455>,  103  Pac.  598. 

ssKnecht  v.  Knecht,  261  Pa.  410,  104  Atl.  676;  Schaffer  v.  Krestovnikow, 
89  N.  J.  Eq.  549,  105  Atl.  239,  affirming  88  N.  J.  Eq.  523,  103  Atl.  913,  88  N. 
J.  Eq.  192,  102  Atl.  246 ;  Howard  v.  Kelly,  111  Miss.  285,  71  Soutfc.  391,  Ann. 
Cas.  1918E,  1230.  Where  cohabitation  was  illicit  in  beginning,  though  bur- 
den of  proof  is  upon  those  asserting  a  valid  marriage,  there  is  no  presump- 
tion that  relationship  continued  to  be  illicit,  and  a  valid  common-law  mar- 
riage may  be  shown  after  impediment  to  marriage  was  removed.  Parker  v. 
De  Bernardi,  40  Nev.  361,  164  Pac.  645.  And  see  Darling  v.  Dent,  82  Ark. 
76,  100  S.  W.  747. 

'  s  9  Schaffer  v.  Krestovnikow,  89  N.  J.  Eq.  549,  105  Atl.  239,  affirming  88 
N.  J.  Eq.  523,  103  Atl.  913,  88  N.  J.  Eq.  192,  102  Atl.  246.  And  see  Bey  v. 
Bey,  83  N.  J.  Eq.  239,  90  Atl.  684. 


54  MARRIAGE  (Ch.  1 

Marriage  by  Proxy 

Marriage  by  proxy  has  been  recognized  in  some  Oriental  coun- 
tries, and  in  Europe  in  some  instances  among  members  of  royal 
families.  Brissand,  in  his  History  of  French  Private  Law,  says 
that  marriage  through  an  agent  was  looked  upon  as  lawful,  calling 
attention  to  the  marriage  of  Frederick  III  and  Eleanor  of  Portugal 
and  of  Maximilian  and  Anne  of  Brittany.  "After  the  Council  of 
Trent,  1563,  the  celebration  of  a  marriage  through  an  agent  has 
no  meaning,  for  it  does  not  do  away  with  the  necessity  of  another 
celebration  taking  place  between  the  parties  themselves,  though  a 
notable  example  of  such  marriage  was  that  of  Henry  IV  and 
Marie  de  Medici."  90 

Whatever  may  have  been  the  law  governing  the  right  of  one  of 
the  parties  to  a  marriage  to  authorize  another  to  act  in  his  name, 
the  modern  tendency,  as  shown  by  dicta,  is  opposed  to  marriage 
by  proxy,  and  is  to  the  effect  that  the  solemnization  of  marriage 
through  an  agent  would  not  be  tolerated.  The  act  of  marrying  is 
too  personal  an  obligation  to  be  delegated  to  any  person.  An  emi- 
nent authority  has  said :  "Contracts  to  marry  may  doubtless  be 
made  through  a  messenger,  but  general  authority  to  make  marriage 
engagements  would  doubtless  not  be  upheld,  and  as  to  the  act  of 
marriage  the  substitution  of  an  agent  or  representative,  while  at 
times  allowed  to  princes,  would  not  be  tolerated  generally."  81 

Indian  Marriages 

Although  an  Indian  tribe,  recognized  as  such,  may  be  located 
within  state  lines,  yet  so  long  as  their  tribal  customs  are  adhered 
to,  and  the  federal  government  manages  their  affairs  by  agents, 
they  are  not  to  be  regarded  as  subject  to  state  laws,  so  far  as  mar- 
riage is  concerned ;  and  therefore  marriages  between  members  of 
Indian  tribes  in  tribal  relations,  valid  by  the  customs  and  laws  of 
the  tribe,  and  contracted  at  a  time  when  there  was  no  law  of  the 
United  States  on  the  subject  of  Indian  marriages  must  be  recog- 


»o  Brissand,  History  of  French  Private  Law  (Continental  Legal  History 
Series)  vol.  2,  pp.  103-106,  note. 

»i  1  Mechem,  Agency  (2d  Ed.)  par.  126.  The  question  has  not  been  passed 
upon  directly  by  the  courts,  but  dicta  may  be  found  In  Commonwealth  v. 
Farmers'  &  Shippers'  Tobacco  Warehouse  Co.,  107  Ky.  1,  52  S.  W.  799; 
Republic  of  Hawaii  v.  Li  Shee,  12  Hawaii,  329;  In  re  Lum  Ling  Xing  (D. 
C.)  59  Fed.  687. 


§§  22-26)        ANNULMENT   AND  AVOIDANCE   OP  MARRIAGES  55 

nized  as  valid  by  the  state  courts  though  not  in  compliance  with 
the  laws  of  the  state.92 

ANNULMENT  AND  AVOIDANCE  OF  MARRIAGES 

22.  Where  a  marriage  is  absolutely  void,  a  suit  to  annul  it  is  not 

necessary ;  but  such  a  suit  will  lie,  and  is  advisable,  in  or- 
der to  have  the  invalidity  of  the  marriage  determined 
judicially. 

23.  Where  a  marriage,  though  not  absolutely  void,  is  voidable  by 

the  act  of  the  parties,  or  one  of  them,  as  in  case  of  nonage, 
fraud,  duress,  etc.,  a  suit  to  annul  the  marriage  is  not 
necessary,  unless  required  by  statute;  but  it  may  be 
brought,  as  in  the  case  of  a  void  marriage,  and  is  advisable. 

24.  In  other  cases  of  voidable  marriage,  a  suit  to  annul  the  mar- 

riage is  necessary.    It  cannot  be  attacked  collaterally. 

25.  If  a  marriage  is  absolutely  void,  it  may  be  annulled  at  any 

time,  and  may  be  attacked  collaterally  as  well  as  directly, 
and  by  third  persons  as  well  as  by  the  parties.  But  if  a 
marriage  is  merely  voidable,  it  must  be  annulled,  if  at  all, 
in  the  lifetime  of  the  parties. 

26.  Annulment  of  a  voidable  marriage  renders  it  void  ab  initio, 

unless  it  is  otherwise  provided  by  statute. 

Suits  to  annul  a  marriage  must  be  distinguished  from  suits  for  a 
divorce,  which  will  be  considered  in  a  subsequent  chapter.  A  suit 
for  a  divorce  supposes  the  existence  of  a  valid  marriage,  and  a 
decree  of  divorce  annuls  existing  rights.  A  suit  for  nullity  of  a 
marriage,  on  the  other  hand,  is  on  the  theory  that  there  is  no  valid 

•»2  Boyer  v.  Dively,  58  Mo.  529;  Yakima  Joe  v.  To-Is-Lap  (O.  C.)  191  Fed. 
516;  Kobogum  v.  Jackson  Iron  Co.,  76  Mich.  498,  43  N.  W.  602,  and  cases 
cited;  Earl  v.  Godley,  42  Minn.  361,  44  N.  W.  254,  7  L.  R.  A.  125,  18  Am. 
St.  Rep.  517;  Johnson  v.  Johnson's  Aclm'r,  30  Mo.  72,  77  Am.  Dec.  598; 
Moore  v.  Nah-con-be,  72  Kan.  169,  83  Pac.  400;  First  Nat.  Bank  v.  Sharpe, 
12  Tex.  Civ.  App.  223,  33  S.  W.  676 ;  Oklahoma  Land  Co.  v.  Thomas,  34  Okl. 
681,  127  Pac.  8;  James  v.  Adams,  56  Okl.  450,  155  Pac.  1121;  Meagher  v. 
Harjo  (Okl.)  179  Pac.  757;  Ortley  v.  Ross,  78  Neb.  339,  110  N.  W.  982.  But 
compare  Roche  v.  Washington,  19  Ind.  53,  81  Am.  Dec.  376 ;  State  v.  Ta-cha- 
na-tah,  64  N.  C.  614.  A  marriage  contracted  according  to  the  customs  of  an 
Indian  tribe  need  not  be  contracted  in  the  territory  of  the  tribe,  to  be  valid. 
La  Riviere  v.  La  Riviere,  97  Mo.  80,  10  S.  W.  840.  But  see  Roche  v.  Wash- 
ington, 19  Ind.  53,  81  Am.  Dec.  376,  and  Banks  v.  Galbraith,  149  Mo.  529,  51 
S.  W.  105. 


56  MARRIAGE  (Ch.  1 

marriage  at  all,  and  a  decree  of  nullity  declares  that  rights  supposed 
to  have  arisen  from  the  attempted  marriage  never  in  fact  existed.98 
A  decree  of  divorce  annuls  a  marriage  only  from  the  time  it  is 
entered.  A  decree  of  nullity,  unless  a  contrary  rule  is  established 
by  statute,  annuls  the  marriage  ab  initio  and,  in  effect,  declares 
that  there  never  has  been  any  marriage.94  Nevertheless  in  a  prop- 
er case  a  decree  annulling  a  marriage  may  be  entered  when  the  re- 
lief asked  is  divorce,  or  under  proper  allegations  by  way  of  answer 
or  cross-bill  in  a  suit  for  divorce.95 

As  has  been  heretofore  shown,  a  marriage  may  be  absolutely 
void  or  only  voidable.  Thus  a  marriage  between  persons,  one  of 
whom  has  a  spouse  living  under  a  prior,  valid,  and  undissolved 
marriage,  is  not  merely  voidable,  but  absolutely  void.08  The  same 
is  true  generally  of  a  marriage  between  persons  under  disability 
by  reason  of  race  or  other  civil  conditions.97  By  the  weight  of 
authority,  also,  marriages  entered  into  by  lunatics  are  absolutely 
void,98  though  there  is  some  authority  for  holding  them  merely 
voidable.  On  the  other  hand,  a  marriage  between  persons  within 
the  prohibited  degrees  of  relationship  are  not  void,  but  voidable.99 

So,  too,  lack  of  physical  capacity  renders  the  marriage  voidable 
only,  and  not  void.1  Though,  when  one  of  the  parties  is  under  the 
age  of  seven,  the  marriage  is  void,  generally  the  fact  that  the  par- 
ties are  under  the  age  of  consent  renders  the  marriage  voidable 
only.2  And  where  one  of  the  parties  was  induced  to  enter  into 
the  marriage  by  fraud,  duress,  or  mistake,  so  that  it  is  invalid,  it 
is  not  absolutely  void,  but  voidable  merely.3 

Where  a  marriage  is  absolutely  void,  and  not  merely  voidable, 

»3  Millar  v.  Millar,  175  Cal.  797,  167  Pac.  394,  L.  R.  A.  1918B,  415,  Ann. 
Cas.  191SE,  184.  An  action  for  divorce  lies  for  causes  subsequent  to  marriage; 
a  suit  in  equity  to  annul  a  void  or  voidable  marriage  for  those  existing  at 
or  prior  to  it.  Henderson  v.  Kessor,  265  Mo.  718,  178  S.  W.  175;  See,  also, 
Taylor  v.  White,  160  N.  C.  38,  75  S.  E.  941,  L.  R.  A.  1916C,  704. 

»<  Stew.  Mar.  &  Div.  §  141 ;  Rawdon  v.  Rawdon,  28  Ala.  565 ;  Powell  v. 
Powell,  18  Kan.  371,  26  Am.  Rep.  774;  Succession  of  Minvielle,  15  La.  Ann. 
342 ;  Lincoln  v.  Lincoln,  29  N.  Y.  Super.  Ct.  525 ;  Wightman  v.  Wightman,  4 
Johns.  Ch.  (N.  Y.)  343;  Smith  v.  Morehead,  59  N.  C.  360;  Patterson  v. 
Gaines,  6  How.  550,  5S2,  12  L.  Ed.  553. 

ssBassett  v.  Bassett,  9  Bush  (Ky.)  696;  Nadra  v.  Nadra,  79  Mich.  591,. 
44  N.  W.  1046 ;  Taylor  v.  Taylor,  173  N.  Y.  266,  65  N.  E.  1098. 

»«  See  ante,  p.  31.  a  See  ante,  p.  29. 

87  See  ante,  p.  30.  a  See  ante,  p.  21. 

»s  See  ante,  p.  17.  *  See  ante,  p.  9. 

»9  See  ante,  p.  26. 


§§  22-26)       'ANNULMENT   AND  AVOIDANCE  OF  MARRIAGES  57 

a  suit  to  annul  it  is  not  necessary.  The  question  of  its  validity  may 
be  raised  at  any  time,  either  before  or  after  the  death  of  the  parties, 
or  of  either  of  them,  and  collaterally  as  well  as  directly ,» and  by 
strangers  as  well  as  by  the  parties  themselves.4  No  rights  what- 
ever can  arise  out  of  a  marriage  that  is  absolutely  void. 

Voidable  marriages  may  be  avoided  by  the  act  of  the  parties 
themselves,  without  going  into  court  and  obtaining  a  decree  of 
nullity;  or  they  may  be  avoided  only  by  a  decree  of  the  court, 
according  to  the  ground  of  objection.5  Thus,  where  one  of  the 
parties  is  under  the  age  of  consent,  the  marriage  may  be  avoided  by 
the  act  of  the  parties ;  no  decree  of  nullity  being  necessary.6  So  it 
has  been  said  that  a  marriage  induced  by  fraud  or  duress  may  be 
avoided  by  the  act  of  the  party  deceived  or  coerced.7 

On  the  other  hand,  a  marriage  invalid  because  the  parties  were 
within  the  prohibited  degrees  of  relationship  is  avoided  only  by 
decree  of  the  court,  and  not  by  act  of  the  parties  themselves.  The 
same  is  true  of  marriages  voidable  because  of  impotence. 

Where  a  marriage  is  merely  voidable,  and  voidable  by  a  decree 
of  nullity  only,  it  is  valid,  unless  a  decree  is  obtained ;  and  the  de- 
cree must  be  made,  if  at  all,  during  the  lives  of  both  parties.8  Until 

*  Shelf.  Mar.  &  <Div.  479 ;  1  Bish.  Mar.,  Div.  &  Sep.  §  258 ;  Cartwright 
v.  McGown,  121  111.  388,  12  N.  E.  737,  2  Am.  St.  Rep.  105 ;  Wilson  v.  Brock- 
ley,  1  Phillim.  Ecc.  132;  Ferlat  v.  Gojbn,  Hopk.  Ch.  (N.  Y.)  478,  493,  14  Am. 
Dec.  554;  Reeves  v.  Reeves,  54  111.  332;  Hantz  v.  Sealy,  6  Bin.  (Pa.)  405; 
Gainings  v.  Williams,  27  N.  C.  487,  44  Am.  Dec.  49;  Hemming  v.  Price,  12 
Mod.  432 ;  Tefft  v.  Tefft,  35  Ind.  44 ;  Patterson  v.  Gaines,  6  How.  550,  592,  12 
L.  Ed.  553;  Fornshill  v.  Murray,  1  Bland  (Md.)  479,  18  Am.  Dec.  344;  Town 
of  Mountholly  v.  Town  of  Andover,  11  Vt.  226,  34  Am.  Dec.  685;  Rawdon 
v.  Rawdon,  28  Ala.  565;  Inhabitants  of  Middleborough  v.  Inhabitants  of 
Rochester,  12  Mass.  363;  Higgins  v.  Breen,  9  Mo.  497;  Smart  v.  Whaley,  6 
Smedes  &  M.  (Miss.)  308;  Inhabitants  of  Unity  v.  Inhabitants  of  Belgrade, 
76  Me.  419 ;  Henderson  v.  Ressor,  265  Mo.  718,  178  S.  W.  175 ;  In  re  Newlin's 
Estate,  231  Pa.  312,  80  Atl.  255;  Williams  v.  McKeene,  193  111.  App.  615; 
McCullen  v.  McCullen,  162  App.  Div.  599,  147  N.  Y.  Supp.  1069;  Williams 
v.  State,  44  Ala.  24.  But  see  Fero  v.  Fero,  62  App.  Div.  470,  70  N.  Y.  Supp. 
742,  and  Wood  v.  Baker,  43  Misc.  Rep.  310,  88  N.  Y.  Supp.  854,  holding  that, 
in  a  suit  by  a  parent  to  annul  the  marriage  of  a  minor  child,  the  latter  must 
be  made  a  party.  See,  also,  to  the  same  effect,  Aguilar.  v.  Lavaro,  4  Phil.  Rep. 
735. 

BA  marriage  contract  is  a  nullity  ab'  initio,  requiring  no  judicial  decree 
for  its  dissolution,  only  where  expressly  so  declared  by  statute.  State  v. 
Yoder,  113  Minn.  503,  130  N.  W.  10,  L.  R.  A.  1916C,  686. 

e  Walls  v.  State.  32  Ark.  565,  570 ;  People  v.  Slack,  15  Mich.  193 ;  McDeed  v. 
McDeed,  67  111.  545. 

7  See  Fooley  v.  Fooley,  94  Ala.  501,  10  South.  646,  33  Am.  St.  Rep.  141. 

si  Bl.  Comin.  434;    Bonham  v.  Badgley,  2  Gilman  (111.)  622;    Cavell  v. 


58  MARRIAGE  (Ch.  1 

it  is  made,  the  marriage  is  valid  for  all  purposes.8  The  children 
are  legitimate;10  the  parties  are  entitled,  respectively,  to  curtesy 
and  dower;  and  all  the  other  incidents  of  a  valid  marriage  attach.11 

After  a  decree  of  nullity,  however,  in  the  lifetime  of  the  parties,' 
the  marriage  is  void  ab  initio,  and  not  merely  from  the  date  of  the 
decree.12  The  children  are  rendered  illegitimate,18  the  parties  have 
no  rights  in  each  other's  property,14  and  communications  formerly 
made  between  them  are  no  longer  privileged.15  In  other  words, 
it  is  just  as  if  no  marriage  had  ever  taken  place.  The  same  doc- 
trines apply  to  a  great  extent  to  marriages  voidable  by  the  act  of 
the  parties,  without  a  decree  of  nullity. 

In  many  respects  the  doctrines  above  stated  have  been  ratified 
by  statute  or  otherwise  in  the  different  states.  So  it  has  been  held 
in  some  jurisdictions  that  a  marriage  invalid  because  induced  by 
fraud  can  be  avoided  only  by  decree  of  annulment.16  The  same  rule 
has  been  adopted  in  some  states  as  to  the  avoidance  of  marriages 
because  of  nonage,17  insanity,18  and  physical  incapacity.1'  So,  too, 

Prince,  L.  R.  1  Exch.  246 ;  White  v.  Lowe,  1  Redf.  Sur.  (N.  Y.)  376 ;  Harrison 
v.  State,  22  Md.  468,  85  Am.  Dec.  658;  Combs  v.  Combs,  17  Abb.  N.  C.  (N.  Y.) 
205 ;  Gatbings  v.  Williams,  27  N.  C.  487,  44  Am.  Dec.  49 ;  Henderson  v.  Res- 
sor,  265  Mo.  718,  178  S.  W.  175;  Fornshill  v.  Murray,  1  Bland  (Md.)  479, 
18  Am.  Dec.  344. 

»  Elliott  v.  Gnrr,  2  Phillim.  Ecc.  16: 

102  Burn.  Ecc.  Law  (Phillim.  Ed.)  tit.  "Marriage";  1  Bish.  Mar.,  Div.  & 
Sep.  §  272. 

11  1  Bl.  Comm.  434;   Rennington  v.  Cole,  Noy,  29. 

"Aughtie  v.  Aughtie,  1  Phillim.  Ecc.  201;  Perry  v.  Perry,  2  Paige  (N. 
Y.)  501. 

is  Aughtie  v.  Aughtie,  1  Phillim.  Ecc.  201.  The  common-law  rule  has  been 
changed  by  statute  in  many  states.  See  post,  p.  295.  As  to  custody  and  sup- 
port of  children,  after  decree  of  nullity,  see  Mickels  v.  Fenuell,  15  N.  D.  188, 
107  N.  W.  53. 

i« Aughtie  v.  Aughtie,  1  Phillim.  Ecc.  201;  Kelly  v.  Scott,  5  Grat.  (Va.) 
479;  Sellars  v.  Davis,  4  Yerg.  (Tenn.)  503.  The  court  has  authority,  in  a 
decree  of  nullity,  to  make  an  equitable  division  of  property  jointly  accumu- 
lated by  the  parties  while  they  lived  together  as  husband  and  wife.  Werner 
v.  Werner,  59  Kan.  399,  53  Pac.  127,  41  L.  R.  A.  3*49,  68  Am.  St  Rep.  372. 

10  Wells  v.  Fletcher,  5  Car.  &  P.  12. 

i«  Jordan  v.  Missouri  &  K.  Telephone  Co.,  136  Mo.  App.  192,  116  S.  W.  432 ; 
McCullen  v.  McCullen,  162  App.  Div.  599,  147  N.  Y.  Supp.  1069. 

IT  Mitchell  v.  Mitchell,  63  Misc.  Rep.  580,  117  N.  Y.  Supp.  671;  People 
v.  Ham,  206  111.  App.  543 ;  Owen  v.  Coffey,  201  Ala.  531,  78  South.  885. 

is  Wolf  v.  Gall,  32  Cal.  App.  286,  163  Pac.  346,  rehearing  denied  in  Su- 
preme Court,  163  Pac.  350;  In  re  Gregorson's  Estate,  160  Cal.  21,  116  Pac. 
60,  L.  R.  A.  1916C,  697,  Ann.  Cas.  1912D,  1124. 

i»  Under  Gen.  St.  Minn.  1913,  §§  7090,  7095,  7106,  a  marriage  between  par- 


§§  22-26)        ANNULMENT   AND  AVOIDANCE   OF  MARRIAGES  59 

a  marriage  invalid  because  the  parties  were  within  the  prohibited 
degrees  of  relationship  can  be  avoided  only  by  decree.20 

The  fact  that  a  marriage  is  absolutely  void,  or  is  voidable  by  the 
act  of  the  parties  themselves,  does  not  prevent  the  bringing  of  a 
suit  to  have  it  annulled,  for  the  purpose  of  having  its  invalidity 
judicially  established,  and  to  fix  the  status  of  the  parties.  Such 
a  suit  is  always  advisable.  As  was  said  by  Chancellor  Kent, 
"Though  marriage  with  an  idiot  or  lunatic  be  absolutely  void,  and 
no  sentence  of  avoidance  be  absolutely  necessary,  yet,  as  well  for 
the  sake  of  the  good  order  of  society  as  for  the  peace  of  mind  of  all 
persons  concerned,  it  is  expedient  that  the  nullity  of  the  marriage 
should  be  ascertained  and  declared  by  the  decree  of  a  court  of  com- 
petent jurisdiction."  21' 

Jurisdiction 

Originally  in  England,  suits  to  annul  marriages  were  within  the 
jurisdiction  of  the  ecclesiastical  courts  only.22  Since  no  courts  in 
the  United  States  have  succeeded  to  the  jurisdiction  of  the  ecclesi- 
astical courts,23  and  even  courts  of  equity,  as  such,  have  no  juris- 
diction in  cases  of  canonical  disabilities,24  suits  to  annul  a  marriage 
on  these  grounds  depend  entirely  upon  statutes  in  this  country,25 
and  the  same  has  been  held  to  be  true  in  case  of  prior  marriage  of 


ties,  one  of  whom  was  an  epileptic,  is  voidable  only,  and  valid  until  dissolved 
by  judicial  decree.    Kitzman  v.  Kitzman,  167  Wis.  308,  166  N.  W.  789. 
•20  Tyler  v.  Andrews,  40  App.  D.  C.  100. 

21  2  Kent,  Cornm.  76;   Hayes  v.  Watts,  3  Phillim.  Ecc.  44;    Pertreis  v.  Ton- 
dear,  1  Hagg.  Consist.  138 ;   Crump  v.  Morgan,  38  N.  C.  91,  40  Am.  Dec.  447 ; 
McCullen  v.  McCullen,  162  App.  Div.  599,  147  N.  Y.   Supp.  1069;    Rawdon 
r.  Rawdon,  28  Ala.  565;   Powell  v.  Powell,  18  Kan.  371,  26  Am.  Rep.  774. 

22  Ridgely  v.  Ridgely,  79  Md.  298,  29  Atl.  597,  25  L.  R.  A.  800. 
23Anonymons,  24  N.  J.  Eq.  19;    Peugnet  v.  Phelps,  48  Barb.  (N.  Y.)  566; 

Burtis  v.  Burtis,  Hopk.  Ch.  (N.  Y.)  557,  565,  14  Am.  Dec.  563;  Perry  v.  Perry, 
2  Paige  (N.  Y.)  501;  Bowers  v.  Bowers,  10  Rich.  Eq.  (S.  C.)  551,  73  Am.  Dec. 
99;  'Le  Barron  v.  Le  Ban-on,  35  Vt.  365. 

2*Anonymous,  24  N.  J.  Eq.  19;  Burtis  v.  Burtis,  Hopk.  Ch.  (N.  Y.)  557,  56o, 
14,  Am,  Dec.  563 ;  Bowers  v.  Bowers,  10  Rich.  Eq.  (S.  C.)  551,  73  Am.  Dec.  99. 

25  Roth  v.  Roth,  97  Misc.'  Rep.  136,  161  N.  Y.  Supp.  99;  Davidson  v.  Ream, 
178  App.  Div.  362,  164  N.  Y.  Supp.  1037,  affirming  97  Misc.  Rep.  89,  161  N. 
Y.  Supp.  13 ;  Stokes  v.  Stokes,  198  N.  Y.  301,  91  N.  E.  793 ;  Kelley  v.  Kelley, 
161  Mass.  Ill,  36  N.  E.  837,  25  L.  R.  A.  806,  42  Am.  St  Rep.  389 ;  Ridgely 
v.  Ridgely,  79  Md.  298,  29  Atl.  597,  25  L.  R.  A.  800.  An  action  to  annul  a 
marriage  being  purely  statutory,  when  statutes  expressly  define  exclusive 
method  of  bringing  such  an  action,  court  may  not  assert  its  original  equity 
jurisdiction,  independently  of  statute,  to  annul  a  contract  Reed  v.  Reed, 
106  Misc.  Rep.  85,  175  N.  Y.  Supp.  264. 


60  MARRIAGE  (Ch.  1 

one  of  the  parties.26    Many  states  have  statutes  giving  jurisdiction 
in  suits  for  nullity  of  marriage.27 

Where  a  marriage  is  invalid  on  other  grounds  than  because  of 
canonical  disabilities,  as  on  the  ground  of  want  of  consent,  arising 
from  insanity,  fraud,  duress,  mistake,  or  any  other  cause,  or  perhaps 
on  the  ground  of  some  civil  disability,  like  prior  marriage,  civil  con- 
dition, or  nonage,  or  on  the  ground  of  illegal  celebration,  it  is  held 
in  this  country  that  a  suit  to  annul  the  marriage  will  lie,  independ- 
ently of  any  statutory  authority  therefor.  Such  suits  are  held  to- 
be  within  the  ordinary  jurisdiction  of  courts  of  equity.28 


POWER  OF  LEGISLATURE  TO  VALIDATE  MARRIAGE 

27.  As  the  state  has  power  to  regulate  and  control  marriages  be- 
tween its  own  citizens,  the  Legislature  may  confirm  and 
make  valid  marriages  which  were  before  voidable. 

Marriage,  since  it  creates  the  most  important  relation  in  life,  and 
is  most  closely  interwoven  with  the  very  fabric  of  society,  has  al- 

2«  Kelley  v.  Kelley,  161  Mass.  Ill,  36  N.  E.  837,  25»  L.  R.  A.  806,  42  Am.  St 
Rep.  389;  French  v.  French,  74  Misc.  Rep.  626,  131  N.  Y.  Supp.  1053. 

27  Stim.  Am.  St.  Law,  §  6112. 

28Rawdon  v.  Rawdon,  28  Ala.  565,  567;  Tefft  v.  Tefft,  35  Ind.  44,  50; 
Powell  v.  Powell,  18  Kan.  371,  373,  26  Am.  Rep.  774;  Bassett  v.  Bassett,  9- 
Bush  (Ky.)  696,  697 ;  Fornshill  v.  Murray,  1  Bland  (Md.)  479.  483,  18  Am.  Dec. 
344 ;  Helms  v.  Franciscus,  2  Bland  (Md.)  544,  579,  20  Am.  Dec.  402 ;  True  v. 
Ranney,  21  N.  H.  52,  53,  53  Am.  Rep.  164;  Keyes  v.  Keyes,  22  N.  H.  553, 
558 ;  Henderson  v.  Ressor,  265  Mo.  718,  178  S.  W.  175 ;  Wimbrough  v.  Wim- 
brough,  125  Md.  619,  94  Atl.  168,  Ann.  Cas.  1916E,  920;  Roth  v.  Roth,  97 
Misc.  Rep.  136,  161  N.  Y.  Supp.  99;  Beckermeister  v.  Beckermeister  (Sup.) 
170  N.  Y.  Supp.  22;  McClurg  v.  Terry,  21  N.  J.  Eq.  226,  229;  Anonymous, 
24  N.  J.  Eq.  19,  20;  Carrls  v.  Carris,  24  N.  J.  Eq.  516;  Selah  v.  Selali.  23 
N.  J.  Eq.  185;  Avakian  v.  Avakian,  69  N.  J.  Eq.  89,  60  Atl.  521;  Widit- 
man  v.  Wightman,  4  Johns.  Ch.  (N.  Y.)  343,  345;  Burtis  V.  Burtis,  Hopk. 
Ch.  (N.  Y.)  557,  567,  14  Am.  Dec.  563;  Ferlat  v.  Gojon,  Hopk.  Ch..(N.  Y.) 
478,  494,  14  Am.  Dec.  554;  Perry  v.  Perry,  2  Paige  (N.  Y.)  501,  503;  Scott 
v.  Shufeldt,  5  Paige  (N.  Y.)  43,  44;  Johnson  v.  Kincade,  37  N.  C.  470,  475; 
Crump  v.  Morgan,  38  N.  C.  91,  98,  40  Am.  Dec.  447;  Waymire  v.  Jetmore, 
22  Ohio  St.  271,  274;  Jelineau  v.  Jelineau,  2  Desaus.  (S.  C.)  45,  50;  Almond 
v.  Almond,  4  Rand.  (Va.)  662,  666,  15  Am.  Dec.  781;  Clark  v.  Field,  13  Vt. 
460,  465;  Le  Barron  v.  Le  Barron,  35  Vt.  365,  366.  But  see  Pitcairn  v.  Pit- 
cairn.  201  Pa.  368,  50  Atl.  963,  holding  that  Pennsylvania  courts  have  na 
jurisdiction  fc>  determine  the  validity  of  a  marriage  alleged  to  be  void  on 
account  of  lunacy  of  one  of  the  contracting  parties,  since  this  power  has  nev- 
er been  conferred  on  them  by  statute. 


§  28)  PRESUMPTION  AND   BURDEN   OF   PROOF  6T 

ways  been  subject  to  regulation  and  control  by  the  state; 28  and  it 
is  well  settled  that  the  Legislature  has  power  to  validate  or  con- 
firm by  statute  a  marriage  theretofore  voidable  because  of  some 
statutory  disability  or  neglect  of  some  statutory  requirement.  This 
question  arose,  and  was  carefully  considered  by  the  Court  of  Ap- 
peals of  Maryland,  in  Harrison  v.  State,80  where  the  validity  of  a 
statute  validating  marriages  between  persons  related  within  the 
prohibited  degrees  of  consanguinity  and  affinity,  and  which  were 
before  voidable,  was  attacked  as  unconstitutional  as  applied  to 
prior  marriages.  The  act  was  upheld,  however,  as  a  valid  exercise 
of  legislative  power,  like  special  acts  of  divorce.  There  are  de- 
cisions in  many  of  the  'other  states  to  the  same  effect.31 

PRESUMPTION  AND  BURDEN  OF  PROOF 

28.  A  marriage  is  presumed  to  be  valid  until  the  contrary  is  made 
to  appear. 

Though  the  burden  of  proving  the  existence  of  a  marriage  is  gen- 
erally on  the  person  who  asserts  it,32  yet,  when  the  celebration  of 
a  marriage  is  once  shown,  the  law  will  presume,  in  the  absence  of 
evidence  to  the  contrary,  the  mutual  consent  of  the  parties,  the 
reality  of  consent,  the  capacity  of  the  parties,  and  in  fact  every- 
thing essential  to  the  validity  of  the  marriage,  and  the  burden  of 
proving  facts  rendering  it  invalid  is  upon  him  who  seeks  to  avoid 
it.33  The  presumption  applies  in  the  case  of  a  common-law  mar- 
riage or  a  marriage  by  Indian  custom,  as  well  as  in  the  case  of  a 

29  See  ante,  p.  6. 

so  22  Md.  468,  85  Am.  Dec.  658.  "Such  legislation,"  it  was  said,  "is  neither 
extraordinary,  unconstitutional,  nor  unjust,  but  conservative,  essential,  and 
salutary;  being  the  only  adequate  means  of  healing  or  preventing  inevi- 
table wrongs,  public  and  private." 

si  Inhabitants  of  Town  of  Goshen  v.  Inhabitants  of  Stonington,  4  Conn.  . 
209,  10  Am.  Dec.  121 ;  Baity  v.  Cranfill,  91  N.  C.  293,  49  Am.  Rep.  641 ;  Moore 
v.  Whitaker,  2  Har.  (Del.)  50;    Andrews  v.  Page,  3  Heisk.  (Tenn.)  653.    But 
see  White  v.  White,  105  Mass.  325,  7  Am.  Rep.  526. 

32  Wilson  v.  Allen,  108  Ga.  275,  33  S.  E.  975 ;    In  re  Davis,  204  Pa.  602,  54 
Atl.  475;    Gorden  v.  Gorden,  283  111.  182,  119  N.  E.  312;    Americus  Gas  & 
Electric  Co.  v.  Coleman,  16  Ga.  App.  17,  84  S.  E.  493;    Adams  v.  Wm.  Cam- 
eron &  Co.  (Tex.  Civ.  App.)  161  S.  W.  417. 

33  Cartwright  v.  McGown,  121  111.  388,  12  N.  E.  737,  2  Am.  St.  Rep.  105; 
McGaugh  v.  Mathis,  131  Ark.  221,  198  S.  W.  1147;    Wilcox  v.  Wilcox,  171 
Cal.  770,  155  Pac.  95;    In  re  Hughson's  Estate,  173  Cal.  448,  160  Pac.  548; 
Appeal  of  Eva,  93  Conn.  38,  104  Atl.  238;    Caujolle  v.  Ferrie,  26  Barb.  (N. 


62  MARRIAGE  (Ch.  1 

ceremonial  marriage.84  The  strength  of  the  presumption  depends, 
of  course,  upon  the  circumstances  of  each  particular  case.85  While 
the  presumption  may  be  rebutted,  the  rebutting  evidence  must  be 
strong,  distinct,  satisfactory,  and  conclusive.39 

Since  the  presumption  is  always  in  favor  of  the  validity  of  a 
marriage,  a  person  who  attacks  a  marriage  as  invalid  on  the  ground 
that  one  of  the  parties  had  been  previously  married  to  another 
person  does  not  fully  meet  the  burden  of  proof  that  is  upon  him 
by  showing  that  'there  was  a  former  valid  marriage  as  he  con- 
tends ; 8T  but  he  must  go  further,  and  show  affirmatively  that  the 
marriage  had  not  been  dissolved,  either  by  the  death  of  the  other 
party,  or  by  a  decree  of  divorce.  Death  of  the  former  spouse,  or 
a  divorce,  will  be  presumed,  unless  the  contrary  is  made  to  ap- 
pear, and  the  burden  is  on  the  person  attacking  the  second  mar- 
riage to  rebut  this  presumption.88  "When  it  is  shown  that  a  mar- 

Y.)  177;  Fleming  v.  People,  27  N.  Y.  329;  Stroae  v.  Magowan's  Heirs, 
2  Bush  (Ky.)  627 ;  People  v.  Calder,  30  Mich.  85 ;  State  v.  Kean,  10  N.  H. 
347,  34  Am.  Dec.  162;  Adger  v.  Ackerman,  115  Fed.  124,  52  C.  C.  A.  568; 
Murchison  v.  Green,  128  Ga.  339,  57  S.  E.  709,  11  L.  R.  A.  (N.  S.)  702; 
Bruns  v.  Cope,  182  Ind.  289,  105  N.  B.  471 ;  In  re  Lando's  Estate,  112  Minn. 
257,  127  N.  W.  1125,  30  L.  R.  A.  (N.  S.)  940;  Wilson  v.  Burnett,  105  Misc. 
Rep.  279,  172  N.  Y.  Supp.  673;  Marone  v.  Marone,  105  Misc.  Rep.  371,  174 
N.  Y.  Supp.  151;  Copeland  v.  Oopeland  (Okl.)  175  Pac.  764;  Klnney  v. 
Tri-State  Tel.  Co.  (Tex.  Civ.  App.)  201  S.  W.  1180;  Barber  v.  People,  203 
111.  543,  68  N.  E.  93;  Senge  v.  Senge,  106  111.  App.  140;  Sparks  v.  Ross,  72 
N.  J.  Eq.  762,  65  Atl.  977;  Potter  v.  Potter,  45  Wash.  401,  88  Pac.  625; 
Thomas  v.  Thomas,  53  Wash.  297,  101  Pac.  865.  Where  the  plaintiff  estab- 
lished the  fact  that  the  celebration  of  the  marriage  of  her  father)  and 
mother  had  taken  place  publicly  before  witnesses  and  before  a  regular  min- 
ister, and  that  the  courthouse  had  subsequently  been  destroyed  by  fire,  the 
presumption  is  that  the  proper  preliminaries,  such  as  the  obtaining  of  a  li- 
cense, etc.,  had  been  complied  with,  and  that  it  was  a  valid  marriage.  Clay- 
ton v.  Haywood,  63  Tex.  Civ.  App.  571,  133  S.  W.  1082.  See,  also,  Ollschlar- 
ger's  Estate,  v.  Widiner,  55  Or.  145,  105  Pac.  717. 

3*  Howard  v.  Kelly,  111  Miss.  285,  71  South.  391,  Ann.  Cas.  1918E,  1230; 
.  Crickett  v.  Hardin,  60  Okl.  57,  159  Pac.  275.  The  presumption,  arising  from 
cohabitation  and  repute,  that  a  marriage  was  entered  into,  has  been  con- 
sidered elsewhere.  See,  ante,  p.  49. 

as  Schubert  v.  Barnholdt,  177  Iowa,  232,  158  N.  W.  662. 

8«  Matthes  v.  Matthes,  198  111.  App.  515. 

«7  The  presumption  in  favor  of  the  legality  of  the  second  marriage  Is 
not  overcome  by  mere  proof  of  a  prior  marriage.  Lewis  v.  Lewis,  60  Okl. 
60,  158  Pac.  368;  Kinney  v.  Tri-State  Telephone  Co.  (Tex.  Civ.  App.)  201 
S.  W.  1180;  Town  of  Roxbury  v.  Town  of  Bridgewater,  85  Conn.  196,  82 
Ati.  193. 

38  Potter  v.  Clapp,.  203  111.  592,  68  N.  E.  81,  96  Am.  St.  Rep.  322 ;  In  re 
Thewlis1  Estate,  217  Pa.  307,  66  Atl.  519;  Murchison  v.  Green,  128  Ga.  339, 


§  28)  PRESUMPTION  AND  BURDEN  OP  PROOF  63 

riage  has  been  consummated  in  accordance  with  the  forms  of  law, 
it  is  to  be  presumed  that  no  legal  impediments  existed  to  their  en- 
tering into  matrimonial  relations;  and  the  fact,  if  shown,  that  ei- 
ther or  both  of  the  parties  had  been  previously  married,  and,  of 
course,  at  a  former  time  having  a  wife  or  husband  living,  does  not 
destroy  the  prima  facie  legality  of  the  last  marriage.  The  natural 
inference  in  such  cases  is  that  the  former  marriage  has  been  le- 
gally dissolved,  and  the  burden  of  showing  that  it  has  not  been, 
rests  upon  the  party  seeking  to  impeach  the  last  marriage.  The 
law  does  not  impose  upon  every  person  contracting  a  second  mar- 
riage the  necessity  of  preserving'the  evidence  that  the  former  mar- 
riage has  been  dissolved,  either  by  death  of  their  former  consort  or 
by  decree  of  court,  in  order  to  protect  themselves  against  a  bill  for 
divorce  or  a  prosecution  for  bigamy."  39 

So  it  has  been  held  that  when  the  presumption  of  validity  of  the 
second  marriage  conflicts  with  the  presumption  of  the  continuance 
of  life,  and  neither  presumption  is  aided  by  proof  of  facts  or  cir- 
cumstances corroborating  it,  the  presumption  of  the  validity  of 
the  marriage  will  prevail  over  the  presumption  of  continuance  of 


57  S.  E.  709,  31  L.  R.  A.  (N.  S.)  702;  Smith  v.  Fuller  (Iowa)  108  N.  W.  765; 
Estes  v.  Merrill,  121  Ark.  361,  181  S.  W.  136;  McLaughlin  v.  McLaughlin, 
201  Ala.  482,  78  South.  388;  In  re  Biersack,  96  Misc.  Rep.  161,  159  N.  Y. 
Supp.  519 ;  Town  of  Roxbury  v.  Town  of  Bridgewater,  85  Conn.  196,  82  Atl. 
193;  Turner  v.  Williams,  202  Mass.  500,  89  N.  E.  110,  24  L.  R.  A.  (N.  S.) 
1199,  132  Am.  St.  Rep.  511 ;  Gamble  v.  Rucker,  124  Tenn.  415,  137  S.  W.  499 ; 
Winter  v.  Dibble,  251  111.  200,  95  N.  E.  1093 ;  Goset  v.  Goset,  112  Ark.  47, 
164  S.  W.  759,  L.  R.  A.  1916C,  707 ;  In  re  Hughson's  Estate,  173  Oal.  448, 
160  Pac.  548 ;  Copeland  v.  Copeland  (Okl.)  175  Pac.  764 ;  Thomas  v.  James, 
(Okl.)  171  Pac.  855;  Howard  v.  Kelly,  111  Miss.  285,  71  South.  391,  Ann. 
Cas.  1918E,  1230;  Schaffer  v.  Richardson's  Estate,  125  Md.  88,  93  Atl.  391, 
L.  R.  A.  1915E,  186;  Maier  v.  Brock,  222  Mo.  74,  120  S.  W.  1167,  133  Am. 
St.  Rep.  513;  Same  v.  Waters,  222  Mo.  102,  120  S.  W.  1174;  Killackey  v. 
Killackey,  156  Mich.  127,  120  N.  W.  680;  Tanton  v.  Tanton  (Tex.  Civ.  App.) 
209  S.  W.  429 ;  Ricard  v.  Ricard,  143  Iowa,  182,  121  N.  W.  525,  26  L,  R.  A. 
(N.  S.)  500,  136  Am.  St.  Rep.  762,  20  Ann.  Cas.  1346;  In  re  Salvin's  Will, 
106  Mis,c.  Rep.  Ill,  173  N.  Y.  Supp.  897;  Price  v.  Tompkins  (Sup.)  171  N. 
Y.  Supp.  844,  order  affirmed  186  App.  Div.  915,  172  N.  Y.  Supp.  915 ;  Jones 
v.  Jones  (Okl.)  164  Pac.  463,  L.  R.  A.  1917E,  921 ;  Schaffer  v.  Krestovnikow, 
88  N.  J.  Eq.  192,  102  Atl.  246;  McGaugh  v.  Mathis,  131  Ark.  221,  198  S.  W. 
1147 ;  In  re  Meehan's  Estate,  150  App.  Div.  681,  135  N.  Y.  Supp.  723 ;  Jack- 
son v.  Phalen,  237  Mo.  142,  140  S.  W.  879;  Id.,  237  Mo.  153,  140  S.  W.  882; 
Wingo  v.  Rudder  (Tex.  Civ.  App.)  120  S.  W.  1073.  But  see  Succession  of 
Thomas,  144  La.  25,  80  South.  186;  Staley  v.  State,  87  Neb.  539,  127  N.  W. 
878. 

s»  Harris  v.  Harris,  8  111.  App.  57. 


C4  MARRIAGE  (Ch.  I1 

the  particular  life,  though  the  time  elapsing  since  the  last  knowl- 
edge of  the  former  spouse  and  the  second  marriage  is  much  less 
than  seven  years.40  And  where  the  former  spouse  is  still  living 
it  will  be  presumed  that  the  prior  marriage  has  been  dissolved  by 
divorce.41  This  presumption  is  so  strong  that  the  one  attacking 
the  legality  of  the  second  marriage  must  prove  that  neither  party 
to  the  first  marriage  obtained  a  divorce,  though  this  involves  prov- 
ing a  negative.42  It  is  generally  sufficient  to  overcome  the  pre- 
sumption if  it  is  shown  that  the  records  of  the  courts  of  the  county 
or  counties  in  which  the  parties  lived  show  no  divorce.48 

The  presumption  of  the  validity  of  the  second  marriage  is,  of 

«o  Murchison  v.  Green,  128  Ga.  339,  57  S.  E.  709,  11  L.  R.  A.  (N.  S.)  702 ; 
Rex  v.  Inhabitants  of  Twyning,  2  Barn.  &  Aid.  386;  Greensboro  v.  Un- 
derbill, 12  Vt  604;  Harris  v.  Harris,  8  111.  App.  57;  Yates  v.  Houston, 
3  Tex.  449;  Senser  v.  Bower,  1  Pen.  &  W.  (Pa.)  450;  Johnson  v.  Johnson, 
114  111.  611,  3  N.  E.  232,  55  Am.  Rep.  883 ;  Dixon  v.  People,  18  Mich.  84 ; 
Commonwealth  v.  Boyer,  7  Allen  (Mass.)  306;  In  re  Biersack,  96  Misc. 
Rep.  161,  159  N.  Y.  Supp.  519;  Howard  v.  Kelly,  111  Miss.  285,  71  South. 
391,  Ann.  Cas.  1918E,  1230;  Sullivan  v.  Grand  Lodge,  K.  P.,  97  Miss.  218, 
52  South.  360;  Spears  v.  Burton,  31  Miss.  547;  Wilkie  v.  Collins,  48  Miss. 
496;  Cash  v.  Cash,  67  Ark.  278,  54  S.  W.  744;  Vreeland  v.  Vreeland,  78 
N.  J.  Eq.  256,  79  Atl.  336,  34  L.  R.  A.  (N.  S.)  940. 

41  Schmisseur  v.  Beatrie,  147  111.  210,  35  N.  E.  525;    Harvey  v.  Carroll, 
5  Tex.  Civ.  App.  324,  23  S.  W.  713 ;    Squire  v.  State,  46  Ind.  459 ;   Boulden  v. 
Mclntire,  119  Ind.  574,  21  N.  E.  445,  12  Am.  St.  Rep.  453;    Blanchard  v. 
Lambert,  43  Iowa,  228,  22  Am.  Rep.  245 ;   Klein  v.  Laudman,  29  Mo.  259 ;   Hull 
v.  Rawls,  27  Miss.  471;    McCarty  v.  McCarty,  2  Strob.   (S.  C.)  6,  47  Am. 
Dec.   585;     Carroll    v.    Carroll,   20   Tex.   731;     In   re    Edwards'    Estate,   58 
Iowa,  431,  10  N.  W.  793;    Wenning  v.  Teeple,  144  Ind.  189,  41  N.  E.  600; 
McCord  v.   McCord,   13 '  Ariz.   377,   114   Pac.   968;    Ross   v.    Sparks,   79  N. 
J.  Eq.  649,  S3  Atl.  1118,  affirming  order  Sparks  v.  Ross,  79  N.  J.  Eq.  99,  80 
Atl.  932;    James  v.  Adams,  56  Okl.  450,  155  Pac.  1121;    Copeland  v.  Cope- 
land   (Okl.)   175  Pac.  764;    Aldridge.v.  Aldridge,   116  Miss.  385,  77  South. 
150;    Lewis  v.  Lewis,  60  Okl.  60,  158  Pac.  368;    Gamble  v.  Rucker,   124 
Tenn.  415,  137   S.  W.   499;    Huff  v.   Huff,  20  Idaho,  450,   118  Pao,  10SO; 
Shepard  v.  Carter,  86  Kan.  125,  119  Pac.  533,  38  L.  R.  A.  (N.  S.)  568 ;    Lyon 
v.  Lash,  79  Kan.  342,  99  Pac.  598;    Maier  v.  Brock,  222  Mo.  74,  120  S.  W. 
11G7,  133  Am.  St  Rep.  529;    Maier  v.  Waters,  222  Mo.  102,  120  S.  W.  1174; 
Wingo  v.  Rudder  (Tex.  Civ.  App.)  120  S.  W.  1073. 

42  Lewis  v.  Lewis,  60  Okl.  60,  158  Pac.  368;    Winter  v.  Dibble,  251  111.  200, 
95  N.  E.  1093;    Estes  v.  Merrill,  121  Ark.  361,  181  S.  W.  136;    Chancey  v. 
Whinnery  (Okl.)  147  Pac.  1036.     A  divorce  should  not  be  presumed,  where 
the  evidence  is  positive  it  does  not  exist,  and  party  alleging  it  shows  only 
an  alleged  declaration  of  the  deceased  spouse  to  that  effect  during  his  life- 
time.   Succession  of  Thomas,  144  La.  25,  80  South.  186. 

43  Schmisseur  v.  Beatrie,  147  111.  210,  35  N.  E.  525 ;    Barnes  v.  Barnes, 
90  Iowa,  282,  57  N.  W.  851;    Smith  v.  Fuller,  138  Iowa,  91,  115  N.  W.  912, 
16  L.  R.  A.  (N.  S.)  98. 


§  29)  CONSTRUCTION   OP   STATUTES  65 

course,  rebuttable;  but  it  can  be  overcome  only  by  clear  and  con- 
vincing evidence.44 

CONSTRUCTION  OF  STATUTES 

29.  Statutes  governing  marriages  are  to  be  construed  in  the  light 
of  the  law  as  it  existed  prior  to  their  enactment ;  and,  un- 
less the  intention  of  the  Legislature  to  that  effect  is  clear, 
they  will  not  be  held  to  avoid  marriages  that  were  valid  at 
common  law,  or  to  otherwise  change  the  common  law. 

It  has  been  seen,  in  treating  of  formalities  in  the  celebration  of 
a  marriage,  that  at  common  law  none  were  required,  and  that  where 
the  Legislature  prescribes  formalities,  as  where  it  requires  a  license, 
or  consent  of  "parents,  or  designates  persons  who  shall  be  compe- 
tent to  perform  the  marriage  ceremony,  the  statute  is  not  to  be  „ 
construed  as  invalidating  common-law,  informal  marriages,  unless 
it  expressly  declares  that  failure  to  observe  the  formalities  pre- 
scribed shall  render  the  marriage  void.45  An  intent  to  change  the 
common  law  must  be  clear.  "Though  in  most,  if  not  all,  the  United 
States,  there  are  statutes  regulating  the  celebration  of  marriage 
rites,  and  inflicting  penalties  on  all  who  disobey  the  regulations, 
yet  it  is  generally  considered  that,  in  the  absence  of  any  positive 
statute  declaring  that  all  marriages  not  celebrated  in  the  prescribed 
manner  shall  be  void,  or  that  none  but  certain  magistrates  or  min- 
isters shall  solemnize  a  marriage,  any  marriage  regularly  made  ac- 
cording to  the  common  law,  without  observing  the  statute  regula- 
tions, would  still  be  a  valid  marriage."  46  "A  statute  may  declare 
that  no  marriages  shall  be  valid  unless  they  are  solemnized  in  a 
prescribed  manner ;  but  such  an  enactment  is  a  very  different  thing 
from  a  law  requiring  all  marriages  to  be  entered  into  in  the  presence 
of  a  magistrate  or  a  clergyman,  or  that  it  be  preceded  by  a  license 
or  publication  of  banns,  or  be  attested  to  by  witnesses.  Such  for- 

44  Gamble  v.  Rucker,  124  Tenn.  415,  137  S.  W.  499;  Schaffer  v.  Krestov- 
nikow,  88  N.  J.  Eq.  192,  102  Atl.  246;  In  re  Salvin's  Will,  106  Misc.  Rep. 
Ill,  173  N.  T.  Supp.  897;  Schubert  v.  Barnholdt,  177  Iowa,  232,  158  N.  W. 
662;  Jackson  v.  Phalen,  237  Mo.  142,  140  S.  W.  879;  Same  v.  Phelan, 
237  Mo.  153,  140  S.  W.  882.  . 

*5Ante,  p.  37,  and  cases  there  collated.  But  see  In  re  McLaughlin's  Es- 
tate, 4  Wash.  570,  30  Pac.  651,  16  L.  R,  A.  699. 

*«  2  Greenl.  Ev.  §  460,  quoted  with  approval  in  Meister  T.  Moore,  96  U.  S. 
79,  24  L,.  Ed.  826. 

TIFF.P.&  D.REL.(3n  ED.)— 5 


66  MARRIAGE  (Ch.  1 

mal  provisions  may  be  construed  as  merely  directory,  instead  of 
being  treated  as  destructive  of  a  common-law  right  to  form  the 
marriage  relation  by  words  of  present  assent.  And  such,  we  think, 
has  been  the  rule  generally  adopted  in  construing  statutes  regulat- 
ing marriage.  Whatever  directions  they  may  give  respecting  its 
formation  or  solemnization,  courts  have  usually  held  a  marriage 
good  at  common  law  to  be  good  notwithstanding  the  statutes,  un- 
less they  contain  express  words  of  nullity."  47 

On  the  same  principle  of  construction,  it  has  been  held  that  a 
statute  which  declares  a  marriage  void  (as  for  canonical  disabili- 
ties), but  does  not  express  any  intention  on  the  part  of  the  Legis- 
lature to  change  the  pre-existing  law,  will  not  be  construed  as 
rendering  absolutely  void  a  marriage  which  was  formerly  only 
voidable  by  a  decree  of  nullity  in  the  lifetime  of  the  parties.  It 
was  said,  in  a  case  holding  this  principle:  "The  disabilities  enu- 
merated are  all  canonical  disabilities,  and  not  those  known  to  the 
law  as  'civil  disabilities.'  Canonical  disabilities  were  such  as  ren- 
der the  marriage  voidable,  and  not  void.  They  require  the  judg- 
ment of  an  ecclesiastical  court,  during  the  lives  of  the  parties,  to 
make  them  effective  as  causes  of  a  divorce.  On  the  other  hand, 
civil  disabilities,  such  as  arose  pro  defectu  consensus,  for  want 
of  a  capacity  to  contract,  or  mental  infirmity,  ipso  facto  avoided 
marriage  without  the  action  of  the  courts.  When  the  Legislature 
declared  by  statute  that  persons  laboring  under  canonical  disabili- 
ties should  not  marry  under  certain  penalties,  but  such  marriages 
should  be  void,  and  gave  jurisdiction  to  the  general  court  to  hear 
and  determine  upon  such  marriages,  it  is  to  be  supposed  they  de- 
signed to  put  persons  laboring  under  such  disabilities  in  the  same 
position  they  were  at  common  law — viz.  they  should  be  void,  when 
established  by  the  judgment  of  a  court,  in  the  life  of  the  parties  to 
the  marriage — not  to  confound  canonical  and  civil  disabilities,  and 
destroy  the  distinction  between  them." 48 

So,  also,  where  a  statute  declared  that  persons  under  the  age 
of  17  should  not  be  capable  of  marrying,  and  that  the  marriage  of 
persons  incapable  of  marrying  should  be  void,  it  was  held  that  a 

*~  Meister  v.  Moore,  96  TJ.  S.  76,  24  L.  Ed.  826.  And  see  cases  cited  ante, 
p.  39. 

«8  Harrison  v.  State,  22  Md.  468,  85  Am.  Dec.  658.  And  see  Bonham  v. 
Badgley,  2  Oilman  (111.)  622;  Parker's  Appeal,  44  Pa.  309;  Com.  v.  Perry- 
man,  2  Leigh  (Va.)  717;  Bowers  v.  Bowers,  10  Rich.  Eq.  (S.  C.)  551,  73  Am. 
Dec.  99. 


§  30)  CONFLICT   OF  LAWS  67 

marriage  by  a  boy  16  years  of  age  could  be  confirmed  and  ratifie'd 
by  him  on  reaching  his  seventeenth  year.49  The  court  construed 
the  statute  as  not  changing  the  common-law  rule  as  to  the  effect  of 
marriages  by  persons  under  the  age  of  consent 

CONFLICT  OF  LAWS 

30.  As  a  rule,  the  validity  of  a  marriage  is  determined  by  the  law 
of  the  place  where  it  was  entered  into. 

It  is  well  settled  that,  as  a  general  rule,  the  validity  of  a  mar- 
riage is  to  be  determined  by  the  law  of  the  place  where  it  is  en- 
tered into.50  As  it  is  generally  expressed,  a  marriage  that  is  valid 
where  made  is  valid  everywhere,  and  a  marriage  that  is  void  where 
made  is  void  everywhere.51 

*»  Smith  v.  Smith,  84  Ga.  440,  11  S.  E.  496,  8  I/.  R.  A.  362.  And  see  Her- 
vey  v.  Moseley,  7  Gray  (Mass.)  479,  66  Am.  Dec.  515;  Inhabitants  of  Hiram 
v.  Pierce,  45  Me.  367,  71  Am.  Dec.  555;  Holtz  v.  Dick,  42  Ohio  St.  23,  51  Am. 
Rep.  791,  and  cases  above  cited. 

so  The  law  of  the  state  where  a  marriage  takes  plaice  governs  Its  legality, 
rather  than  that  of  the  residence  of  the  parties.  Reifschneider  v.  Reifschnei- 
der,  241  111.  92,  89  N.  E.  255,  affirming  judgment  144  111.  App.  119;  Hender- 
son v.  Ressor,  265  Mo.  718,  178  S.  W.  175.  And  see  cases  cited  in  nota. 
Where  a  man  sent  a  woman  residing  in  Missouri  a  written  contract,  signed 
by  him,  stating  that  the  parties  would  henceforth  be  husband  and  wife  and 
so  conduct  themselves,  the  laws  of  Missouri,  where  the  woman  accepted  the 
contractual  offer,  govern.  Great  Northern  Ry.  Co.  v.  Johnson,  254  Fed.  683, 
166  C.  O.  A.  181.  It  is  a  settled  rule  of  private  international  law  that  the 
statutes  as  to  marriage  of  a  foreigner  in  his  own  country  would  be  recognized 
in  any  other  country  which  he  may  select  as  his  place  of  abode.  Miller  tf. 
Miller,  70  Misc.  Rep.  368,  128  N.  Y.  Supp.  787.  See  also  In  re  Lando's  Estate, 
112  Minn.  257,  127  N.  W.  1125,  30  L.  R.  A.  (N.  S.)  940.  In  this  case  the 
parties  were  citizens  of  Minnesota,  but  the  acts  constituting  the  contract  of 
marriage  took  place  in  Germany.  The  German  law  provides  that  the  va- 
lidity of  a  marriage  of  aliens  is  to  be  determined  by  the  law  of  the  country 
of  which  the  parties  were  subject.  As  the  acts  relied  on  to  show  a  mar- 
riage would  have  been  sufficient  if  performed  in  Minnesota,  it  was  held  that 
the  marriage  was  valid. 

si  Roach  v.  Garvan,  1  Ves.  Sr.  159;  Warrender  v.  Warrender,  2  Clark  & 
F.  488;  Harding  v.  Alden,  9  Greenl.  (Me.)  140,  23  Am.  Dec.  549;  In  re  Lum 
Lin  Ying  (D.  C.)  59  Fed.  682 ;  Stevenson  v.  Gray,  17  B.  Mon.  (Ky.)  193 ',  Du 
maresly  v.  Fishly,  3  A.  K.  Marsh.  (Ky.)  368;  True  v.  Ranney,  21  N.  H.  52, 
53  Am.  Dec.  164 ;  Hutchins  v.  Kimmell,  31  Mich.  126,  18  Am.  Rep.  164 ;  Van 
Voorhis  v.  Brintnall,  86  N.  Y.  18,  40  Am.  Rep.  505;  Moore  v.  Hegeman,  92 
N.  Y.  521,  44  Am.  Rep.  408;  Thorp  v.  Thorp,  90  N.  Y.  602,  43  Am.  Rep.  189; 
Fornshill  v.  Murray,  1  Bland  (Md.)  479,  18  Am.  Dec.  344;  Fensterwald  v. 
Burk,  129  Md.  131,  98  Atl.  358,  3  A.  L.  R.  1562 ;  Tyler  v.  Andrews,  40  App. 
D.  C.  100;  Schofleld  v.  Schofield,  51  Pa.  Super.  Ot.  564;  Petras  r.  Petrar 


68  MARRIAGE  (Ch.  1 

The  law  of  the  place  where  the  marriage  was  entered  into  gov- 
erns with  respect  to  the  matrimonial  capacity  of  the  parties,  as  well 
as  with  respect  to  the  manner  or  form  of  solemnization  of  the 
marriage.62  Thus  it  has  been  held  that  a  marriage  of  first  cousins, 
valid  in  the  state  of  their  residence,  will  be  regarded  as  valid  in 
another  state,  though  the  marriage  of  first  cousins  is  prohibited  in 
the  latter  state  and  the  marriage,  if  entered  into  there,  would  have 
been  invalid.68  Similarly  it  has  been  held  in  Florida  that,  though 
marriages  between  whites  and  negroes  are  invalid  in  that  state, 
yet  if  a  marriage  between  a  white  person  and  a  negro  takes  place 
in  a  state  where  such  marriages  are  valid,  it  will  be  recognized  as 
a  valid  marriage  in  Florida.64 

A  marriage  invalid  in  the  country  or  state  where  it  was  made  may 
be  valid  as  a  common-law  marriage  in  another  state.  Thus  in  a 

New  York  case  it  was  held  that  a  marriage  between  a  man  and  a 

t 

(Del.  Super.)  105  Atl.  835;  In  re  Lando's  Estate,  112  Minn.  257,  127  N.  W. 
1125,  30  L.  R.  A.  (N.  S.)  940;  Ollschlager's  Estate  v.  Widmer,  55  Or.  145, 
105  Pac.  717;  Nehring  v.  Nehring,  164  111.  App.  527 ;  Powell  v.  Powell,  207 
111.  App.  292,  judgment  affirmed  282  111.  357,  118  N.  EL  786;  Sutton  v.  War- 
ren, 10  Mete.  (Mass.)  451;  Com.  v.  Graham,  157  Mass.  75,  31  N.  E.  706,  16 
L.  R.  A.  578,  34  Am.  St.  Rep.  255 ;  Inhabitants  of  Hiram  v.  Pierce,  45  Me. 
367,  71  Am.  Dec.  555;  Johnson  v.  Johnson's  Adm'r,  30  Mo.  72,  77  Am.  Dec. 
598;  Inhabitants  of  Medway  v.  Inhabitants  of  Needham,  16  Mass.  157,  8 
Am.  Dec.  131;  Jackson  v.  Jackson,  80  Md.  176,  30  Atl.  752;  Hills  v.  State, 
61  Neb.  589,  85  N.  W.  836,  57  L.  R.  A.  155 ;  Darling  v.  Dent,  82  Ark.  76,  100 
S.  W.  747;  McHenry  v.  Brackin,  93  Minn.  510,  101  N.  W.  960;  Travers  v. 
Reinhardt,  25  App.  D.  C.  567;  Reid  v.  Reid,  72  Misc.  Rep.  214,  129  N.  T. 
Supp.  529;  In  re  Rutte^s  Estate,  79  Misc.  Rep.  74,  139  (N.  Y.  Supp.  693; 
Davidson  v.  Ream,  97  Misc.  Rep.  89,  161  N.  Y.  Supp.  73;  In  re  Spondre,  98 
Misc.  Rep.  524,  162  N.  Y.  Supp.  943 ;  Donohue  v.  Donohue,  63  Misc.  Rep.  Ill, 
116  N.  Y.  Supp.  241 ;  Miller  v.  MilJer,  76  W.  Va.  352,  85  S.  E,  542 ;  Thomp- 
son v.  Thompson  (Tex.  Civ.  App.)  202  S.  W.  175,  judgment  modified  on  sec- 
ond motion  for  rehearing  203  S.  W.  939.  Marriages  between  people  of  Greek 
Orthodox  faith  and  non-Christians  in  Russia,  being  deemed  illegal  under  its 
laws,  are  so  regarded  elsewhere.  Schaffer  v.  Krestovnikow,  88  N.  J.  Eq. 
192,  102  Atl.  246. 

62  Hastings  v.  Douglass  (D.  C.)  249  Fed.  378:   Ogden  v.  Ogden,.[1908]  Prob. 
46.     See,  also,  Com.  v.  Lane,  113  Mass.  458,  18  Am.  Rep.  509;    Ex  parte 
Ohace,  26  R.  I.  351,  58  Atl.  978,  69  L.  R.  A.  493,  3  Ann.  Gas.  1050,  Cooley 
Cas.  Persons  and  Domestic  Relations,  35;    State  v.  Shattuck,  69  Vt  403,  38 
Ati.  81,  40  L.  R,  A.  428,  60  Am.  St  Rep.  936. 

63  People  v.  Siems,  198  111.  App.  342;    Garcia  v.  Garcia,  25  S.  D.  645,  127 
N.  W.  586,  33  L.  R.  A.    (N.  S.)  424,  Ann.  Cas.  1912C,  621.    And  see  Fen- 
sterwald  v.  Burk,  129  Md.  131,  98  Atl.  358,  3  A.  L.  R.  1562,  where  a  marriage 
between  uncle  and  niece  was  involved. 

5*  Whittington  v.  McCaskill,  65  Fla.  162,  61  South.  236,  44  L.  R.  A.  (N.  S.) 
630,  Ann.  Cas.  1915B,  1001. 


§  30)  CONFLICT  OP  LAWS  6& 

woman  whose  former  husband  had  not  been  heard  from  or  known 
to  be  living  for  more  than  five  years  prior  to  such  marriage,  solem- 
nized in  Canada,  and  void  under  the  laws  of  that  country,  because 
of  the  possible  existence  of  such  former  husband,  could  be  treated 
in  New  York,  where  both  the  parties  were  then  domiciled,  as  a  mar- 
riage per  verba  de  prsesenti,  and  valid  when  followed  by  cohabita- 
tion as  husband  and  wife.65  On  the  other  hand,  it  has  been  held 
in  Missouri  that,  if  common-law  marriages  are  not  recognized  in 
the  state  where  the  acts  alleged  to  show  a  common-law  marriage 
took  place,  the  Missouri  courts  will  not  recognize  such  marriage 
as  having  been  entered  into,  though  common-law  marriages  are 
valid  in  Missouri,  and  the  acts  shown,  had  they  taken  place  in 
Missouri,  would  have  established  a  common-law  marriage.56 

To  this  general  rule  that  a  marriage  valid  where  made  is  valid 
everywhere  there  are,  however,  some  exceptions.  For  example,  a 
marriage  entered  into  in  one  state  or  country  will  not  be  recognized 
as  valid  by  the  courts  of  another  state  or  country  if  it  is  opposed  to 
morality  or  religion  or  the  law  of  nature  as  generally  recognized  in 
Christian  countries  57  such  as  a  polygamous  or  incestuous  mar- 
riage; 58  or,  secondly,  if  it  is  a  marriage  which  the  local  law-mak- 
ing power  has  declared  invalid  as  contrary  to  the  settled  policy  of 
the  state.59 

OB  Wilcox  v.  Wilcox,  46  Hun  (N.  Y.)  32.    And  see  cases  in  note  51,  supra. 
Re  Jordan  v.  Missouri  &  K.  Tel.  Co.,  136  Mo.  App.  192,  116  S.  W.  432. 

57  Commonwealth  v.   Lane,  113  Mass.  458,  18  Am.  Hep.  509;    Sturgis  v. 
Sturgis,  51  Or.  10,  93  Pac.  696,  15  L.  R.  A.  (N.  S.)  1034,  131  Am.  St.  Rep.  724; 
State  v.  Fenn,  47  Wash.  561,  92  Pac  417,  37  L.  R.  A.  (N.  S.)  800;    Earle  v. 
Earle,  141  App.  Div.  611,  126  N.  Y.  Supp.  317;    Davidson  v.  Ream,  97  Misc. 
Rep.  89,  161  N.  Y.  Supp.  73 ;   True  v.  Ranney,  21  N.  H.  52,  53  Am.  Dec.  164 
(where  the  marriage  of  an  imbecile  was  involved). 

58  Conway  v.  Beazley,  3  Hagg.  Ecc.  639;   Inhabitants  of  Medway  v.  Inhab- 
itants of  Needham,  16  Mass.  157,  8  Am.  Dec.  131;    Stevenson  v.  Gray,  17  B. 
Mon.    (Ky.)   193;     Schofield  v.   Schofield,   51  Pa.   Super.  Ot.   564;    Roche  v. 
Washington,  19  Ind.  53,  81  Am.  Dec.  376;    Sturgis  v.  Sturgis,  51  Or.  10,  93 
Pac.  696,  15  L.  R.  A.  (N.  S.)  1034,  131  Am.  St.  Rep.  724;    State  v.  Fenn,  47 
Wash.  561,  92  Pac.  417.    The  marriage  must,  however,  be  incestuous  by  the 
common  consent  of  Christendom;  i.  e.,  marriages  in  the  direct  line  of  con- 
sanguinity and  in  the  collateral  line  between  brothers  and  sisters.     Sutton 
v.  Warren,  10  Mete.  (Mass.)  451 ;    Stevenson  v.  Gray,  17  B.  Mon.  (Ky.)  193. 

sopennegar  v.  State,  87  Tenn.  244,  10  S.  W.  305,  2  L.  R.  A.  703,  10  Am. 
St.  Rep.  648;  Sturgis  v.  Sturgis,  51  Or.  10,  93  Pac.  696,  15  L.  R.  A.  (N.  S.) 
1034,  131  Am.  St.  Rep.  724 ;  Brook  v.  Brook,  9  H.  L.  Cas.  193 ;  Succession  of 
Gabisso,  119  La.  704,  44  South.  438,  11  L.  R.  A.  (N.  S.)  1082,  121  Am.  St.  Rep. 
529,  12  Ann.  Cas.  574;  Newman  v.  Kimbrough  (Tenn.  Ch.  App.)  59  S.  W. 
1061,  52  L.  R,  A.  668 ;  State  v.  Fenn,  47  Wash.  561,  92  Pac.  417,  37  L,  R,  A. 


70  MARRIAGE  (Ch.  1 

While  there  seem  to  be  no  differences  of  opinion  as  to  cases  aris- 
ing under  the  first  exception,  there  is  an  apparent  conflict  between 
the  courts  where  the  decision  has  turned  on  questions  arising  under 
the  second  exception,  especially  when  the  parties  have  gone  out  of 
the  state  in  which  they  live  for  the  purpose  of  evading  its  laws. 
The  courts  of  some  states  have  held  that  in  such  instances  the 
marriage  will  not  be  declared  invalid  on  the  return  of  the  parties 
into  the  state,  if  it  was  valid  in  the  state  or  country  where  it  took 
place.60  On  the  other  hand,  in  other  jurisdictions  the  contrary 
rule  has  been  announced.01 

It  is  to  be  observed,  however,  that  the  conflict  is  more  apparent 
than  real,  and  that -in  nearly  every  case  the  decision  turns  on  the 
question  whether  the  particular  provision  of  the  law  which  it  was 
sought  to  evade  was  or  was  not  an  expression  of  the  distinctive 
public  policy  of  the  state.  This  becomes  manifest  if  a  comparison 
is  made  of  the  decisions,  apparently  conflicting,  from  the  same 
jurisdiction,62  or  of  decisions  from  different  jurisdictions  where  lo- 
cal conditions  have  given  rise  to  distinctive  public  policies.68 

(N.  S.)  800;  Davidson  v.  Ream,  97  Misc.  Rep.  89,  161  N.  Y.  Supp.  73;  Peo- 
ple v.  Siems,  198  111.  App.  342;  Kitzinan  v.  Kitzrnan,  167  Wis.  308,  166  N. 
W.  789 ;  People  v.  Steere,  184  Mich.  556,  151  N.  W.  617. 

«o  Com.  v.  Graham,  157  Mass.  73,  31  N.  E.  706,  16  L.  R.  A.  578,  34<kAm. 
St.  Rep.  255;  Levy  v.  Downing,  213  Mass.  334,  100  IN.  E.  638;  Thorp  v. 
Thorp,  90  N.  Y.  602,  43  Am.  Rep.  189;  Inhabitants  of  West  Cambridge  v. 
Inhabitants  of  Lexington,  1  Pick.  (Mass.)  506,  11  Am.  Dec.  231 ;  Inhabitants 
of  Medway  v.  Inhabitants  of  Needham,  16  Mass.  157,  8  Am.  Dec.  131 ;  State 
v.  Hand,  87  Neb.  189,  126  N.  W.  1002,  28  L.  R.  A.  (N.  S.)  753 ;  Courtright  v. 
Courtrigbt,  26  Wkly.  Law  Bui.  (Ohio)  309;  Petit  v.  Petit,  45  Misc.  Rep.  155, 
01  N.  Y.  Supp.  979;  Ex  parte  Chace,  26  R.  I.  351,  58  Atl.  978,  69  L.  R.  A. 
493,  3  Ann.  Cas.  1050,  Cboley  Gas.  Persons  and  Domestic  Relations,  35.  And 
see  cases  cited  in  note  68. 

«iDupre  v.  Boulard's  Ex'r,  10  La.  Ann.  411;  Babin  v.  Le  Blanc,  12  La. 
Ann.  367 ;  Maillefer  v.  Saillot,  4  La.  Ann.  375 ;  Saul  v.  His  Creditors,  5  Mart. 
(N.  S.  La.)  569,  16  Am.  Dec.  212;  Succession  of  Caballero  v.  Executor,  24 
La.  Ann.  573;  McLennan  v.  McLennan,  31  Or.  480,  50  Pac.  802,  38  L.  R.  A. 
863,  65  Am.  St.  Rep.  835;  In  re  Stull's  Estate,  183  Pa.  625,  39  Atl.  16,  39  L. 
R.  A.  539,  63  Am.  St.  Rep.  776 ;  Durocher  v.  Degre,  Rap.  Jud.  Que.  20  C.  S. 
456.  And  see  cases  cited  in  note  71.  There  are  statutes  in  some  states  to 
the  same  effect.  See,  for  example,  Civ.  Code  Ga.  §  2424;  Burns'  Ann.  St. 
Ind.  1914,  §  8367;  Rev.  St.  Me.  c.  64,  §  9. 

62  Compare  McLennan  v.  McLennan,  31  Or.  480,  50  Pac.  802,  38  L.  R.  A. 
863,  65  Am.  St  Rep.  835,  and  Sturgis  v.  Sturgis,  51  Or.  10,  93  Pac.  696,  15 
L,  R.  A.  (N.  S.)  1034,  131  Am.  St.  Rep.  724.  Compare,  also,  Tyler  v.  Tyler, 
170  Mass.  150,  48  N.  E.  1075.  and  Com.  v.  Graham,  157  Mass.  73,  31  N.  E. 
706,  16  L.  R.  A.  578,  34  Am.  St.  Rep.  255.  The  good  faith  of  the  parties  was 
regarded  as  an  element  in  Whippen  v.  Whippen,  171  Mass.  560,  51  N.  E.  174. 

08  Compare  Inhabitants  of  Medway  v.  Inhabitants  of  Needham,  16  Mass. 


§  30)  CONFLICT   OP  LAWS  71 

It  is  generally  held  that,  if  the  statutory  prohibition  relates  only 
to  matters  of  form  and  ceremony,  the  general  rule  applies,64  and 
the  marriage  will  be  held  valid,  even  though  the  parties  were  mar- 
ried in  another  state  in  order  to  evade  the  law  of  their  own  state.65 
Thus,  too,  it  has  been  held  that  a  marriage  between  first  cousins, 
entered  into  outside  the  state  of  residence  of  the  parties>  is  never- 
theless valid  in  the  state  of  residence,  though  the  parties  went  out 
of  the  state  to  evade  its  laws.66  On  the  other  hand,  it -has  been  held 
in  New  York  that  where  residents  of  that  state,  incapable  of  mar- 
rying in  New  York  because  under  age,  went  over  into  New  Jersey 
and  were  married  there  to  evade  the  law  of  New  York,  such  mar- 
riage would  be  annulled.67 
Extraterritorial  Effect  of  Restrictions  on  Right  to  Marrty  after  Divorce 

There  is  a  great  difference  of  opinion  as  to  the  extraterritorial 
effect  of  statutes  prohibiting  divorced  persons  from  marrying  for 
a  definite  period  or  during  the  lifetime  of  the  complaining  spouse. 
As  a  general  rule  such  statutes  have  no  extraterritorial  effect,  and 
a  marriage  in  another  state  of  a  divorced  person  within  the  period 
prohibited  by  the  statute  of  the  state  where  the  divorce  was  grant- 
ed, if  valid  by  the  law  of  the  state  where  the  marriage  took  place, 
will  be  recognized  as  valid  in  the  state  where  the  divorce  was 

157,  8  Am.  Dec.  131,  in  which  the  marriage  of  a  white  person  with  a  negro 
was  involved,  with  Kinney  v.  Commonwealth,  30  Grat.  (Va.)  858,  32  Am.  Eep. 
690,  and  State  v.  Kennedy,  76  N.  C.  251,  22  Am.  Eep.  683.  In  this  connec- 
tion see,  also,  Minor,  Confl.  of  Laws,  pp.  151-153. 

«4  Dalrymple  v.  Dalrymple,  2  Hagg.  Consist.  54;  In  re  Lum  Lin  Ying  (D. 
C.)  59  Fed.  682;  Inhabitants  of  Hiram  v.  Pierce,  45  Me.  367,  71  Am.  Dec. 
555 ;  Jackson  v.  Jackson,  SO  Md.  176,  30  Atl.  752 ;  Id.,  82  Md.  17,  33  Atl.  317, 
34  L.  R.  A.  773;  Com.  v.  Graham,  157  Mass.  73,  31  N.  E.  706,  16  L.  R.  A. 
578,  34  Am.  St.  Rep.  255. 

eo  Pennegar  v.  State,  87  Tenn.  244,  10  S.  W.  305,  2  L.  R.  A.  703,  10  Am.  St. 
Rep.  648;  Sturgis  v.  Sturgis,  51  Or.  10,  93  Pac.  69S,  19  L.  R.  A.  (N.  S<) 
1034,  131  Am.  St.  Rep.  724;  Ex  parte  Chace,  26  R.  I.  351,  58  Atl.  978,  69 
L.  R.  A.  493,  3  Ann.  Cas.  1050,  Cooley,  Gas.  Persons  and  Domestic  Relations, 
35.  But  see  Norman  v.  Norman,  121  Cal.  620,  54  Pac.  143,  42  L.  R.  A.  343, 
66  Am.  St.  Rep.  74,  holding  that  where  parties  go  on  the  high  seas,  where  no 
law  exists,  to  be  married,  so  as  to  evade  the  laws  of  the  state  wherein  they 
are  domiciled,  and  immediately  after  the  marriage  return  and  continue  to 
reside  in  such  state,  the  laws  of  their  domicile  apply  to  the  marriage. 

eeLeefield  v.  Leefield,  85  Or.  287,  166  Pac.  953;  Schofield  v.  Schofield,  51 
Pa.  Super.  Ct.  564.  But,  contra,  see  Johnson  v.  Johnson,  57  Wash.  89,  106 
Pac.  500,  26  L,  R.  A.  (N.  S.)  179. 

67  Cunningham  v.  Cunningham,  206  N.  Y.  341,  99  N.  E.  845,  43  L.  R.  A. 
(N.  S.)  355,  reversing  judgment  145  App.  Div.  919,  130  N.  Y.  Supp.  1109; 
Mitchell  v.  Mitchell,  63  Misc.  Rep.  580,  117  N.  Y.  Supp.  671. 


72  MARRIAGE  (Ch.  1 

granted.88  This  general  rule  has  been  upheld,  though  the  parties 
went  outside  the  state  where  the  divorce  was  granted,  that  being 
their  domicile,  merely  to  evade  the  law  of  such  state.89  The  fact 
that  the  state  in  which  the  marriage  took  place  has  a  statute  sim- 
ilar to  the  statute  of  the  state  where  the  divorce  was  granted  does 
not  as  a  rule  affect  the  question.70 

On  the  other  hand,  in  a  number  of  states  where  the  statute  ex- 
pressly declares  that  a  marriage  entered  into  in  contravention 
thereof  shall  be  deemed  void,  the  general  rule  has  been  rejected, 
and,  on  the  theory  that  the  statute  establishes  a  distinct  and  defi- 
nite public  policy,  marriages  in  contravention  of  the  statute  are 
held  to  be  invalid,  no  matter  where  celebrated.71 

The  Supreme  Court  of  Wisconsin  has  gone  to  the  extreme  in 
its  application  of  the  rule  that  statutes  declaring  a  distinct  public 
policy  will  render  invalid  a  marriage  in  contravention  of  that  policy 
contracted  in  another  state.  In  Hall  v.  Industrial  Commission  72 

es  State  v.  Shattuck,  69  Vt.  403,  38  Atl.  81,  40  L.  R.  A.  428,  60  Am.  St. 
Rep.  936;  Grouse  v.  Wheeler,  62  Colo.  51,  158  Pac.  1100,  Ann.  Cas.  1918E, 
1074;  In  re  Eichler,  84  Misc.  Rep.  667,  146  N.  Y.  Supp.  846;  McLaughlin  v. 
McLaughlin,  201  Ala.  482,  78  South.  388;  People  v.  Woodley,  22  Oal.  App. 
674,  136  Pac.  312;  Grlswold  v.  Griswold,  23  Colo.  App.  365,  129  Pac.  560; 
Dudley  v.  Dudley,  151  Iowa,  142,  130  N.  W.  785,  32  L.  R.  A.  (N.  S.)  1170; 
State  v.  Weatherby,  43  Me.  258,  69  Am.  Dec.  59 ;  Dimpfel  v.  Wilson,  107  Md. 
329,  68  Atl.  561,  13  L.  R.  A.  (N.  S.)  1180,  15  Ann.  Cas.  758 ;  In  re  Crane,  170 
Mich.  651,  136  N.  W.  587,  40  L.  R.  A.  (N.  S.)  765,  Ann.  Cas.  1914A,  1173; 
Thorp  v.  Thorp,  90  N.  Y.  602,  43  Am.  Rep.  189 ;  Moore  v.  Hegeman,  92  N.  Y. 
521,  44  Am.  Rep.  408. 

aoPonsford  v.  Johnson,  Fed.  Cas.  No.  11266;  Griswold  v.  Griswold,  23 
Colo.  App.  365,  129  Pac.  560;  Dudley  v.  Dudley,  151  Iowa,  142,  130  N.  W. 
785,  32  L.  R.  A.  (N.  S.)  1170 ;  Slate  v.  Hand,  87  Neb.  189,  126  N.  W.  1002,  28 
L.  R.  A.  (N.  S.)  753 ;  State  v.  Shattuck,  69  Vt.  403,  38  Atl.  81,  40  L.  R.  A. 
428,  60  Am.  St.  Rep.  936. 

TO  Dudley  v.  Dudley,  151  Iowa,  142.  130  N.  W.  785,  32  L.  R.  A.  (N.  S.) 
1170;  Inhabitants  of  Phillips  v.  Inhabitants  of  Madrid,  83  Me.  205,  22  Atl. 
114,  12  It  R.  A.  862,  23  Am.  St.  Rep.  770. 

71  Wilson  v.  Cook,  256  111.  460,  100  N.  E.  222,  43  L.  R.  A.  (N.   S.)  365: 
Hahn  v.  Hahn,  104  Wash.  227,  176  Pac.  3;    Gardner  v.  Gardner,  232  Mass. 
253,  122  N.  E.  308 ;    White  v.  Wfcite,  167  Wis.  615,  168  N.  W.  704 ;    Rand  v. 
Bogle,  197  111.  App.  476;    Peerless  Pacific  Co.  v.  Burckhard,  90  Wash.  221, 
155  Pac.  1037,  L.  R.  A.  1917C,  353,  Ann.  Cas.  1918B,  247 ;    Severe  v.  National 
Slavonic  Society  of  the  United  States,  138  Wis.  144,  119  N.  W.  814;    In  re 
Stull's  Estate,  183  Pa.  625,  39  Ati.  16,  39  L.  R,  A.  539,  63  Am.  St  Rep.  776; 
Pennegar  v.  State,  87  Tenn.  244,"  10  S.  W.  305,  2  L.  R.  A.  703,  10  Am.  St. 
Rep.  648;   Williams  v.  Gates,  27  N.  C.  535;    State  v.  Fenn,  47  Wash.  561,  92 
Pac.  417,  17  L.  R,  A.  (N.  S.)  800;   Lanham  v.  Lanharn,  136  Wis.  360,  117  N. 
W.  787,  17  L.  R,  A.  (N.  S.)  804,  128  Am.  St.  Rep.  1085. 

72  165  Wis.  364,  162  N.  W.  312,  L.  R,  A.  1917D,  829. 


§  30)  CONFLICT   OF  LAWS  73 

it  appeared  that  W.  was  divorced  from  her  husband  in  Illinois  in 
October,  1911.  The  decree,  in  accordance  with  the  provisions  of 
the  Illinois  statute,73  declared  that  neither  party  should  marry 
within  one -year.  In  July,  1912,  W.  and  H.,  both  residents  of  Ill- 
inois, went  into  Indiana  and  were  married.  They  went  immediate- 
ly to  Wisconsin,  remaining  there  two  months.  They  then  returned 
to  Illinois,  and  after  residing  in  Illinois  about  two  years  again  took 
up  their  residence  in  Wisconsin.  In  an  action  brought  by  Mrs. 
H.  under  the  Workmen's  Compensation  Act,  the  Supreme  Court 
held  that  she  was  not  the  widow  of  H.,  as  the  marriage  in  Indiana 
was  invalid.  The  court,  though  recognizing  the  general  rule  that 
a  marriage  valid  where  celebrated  is  valid  everywhere,  held  that 
as  the  marriage  was  invalid  by  Illinois  law,  and  Wisconsin  had  a 
statute  similar  to  the  Illinois  statute,  the  general  principle  of  comity 
justified  the  court  in  refusing  to  recognize  the  Indiana  marriage, 
though  the  marriage  was  valid  under  the  Indiana  law.  The  court 
said :  "The  statute  of  Illinois,  with  its  judicial  construction,  must 
be  deemed  imported  into  plaintiff's  divorce  decree,  and  since  such 
statute  and  construction  are  substantially  the  same  as  ours,  and 
since  they  declare  a  public  policy  similar  to  our  own,  no  good  rea- 
son is  perceived  why  this  court  should  not  take  cognizance  of 
plaintiff's  evasion  of  the  laws  of  our  sister  state,  and  apply  the 
same  rule  to  their  infraction  that  we  would  apply  to  a  violation  of 
our  own  like  laws." 

The  decision  is  remarkable  in  that  it  is  contrary  to  the  great 
weight  of  authority,  and  to  the  well-recognized  general  rule  that  it 
is  only  the  public  policy  of  the  state  of  the  forum  that  should  be 
considered  in  cases  of  this  character,  and  not  the  public  policy  of 
some  other  state  or  country.74  It  is  only  by  the  utmost  stretch  of 
the  imagination  and  a  juggling  with  the  meaning  of  words  that  an 
act  committed  in  Indiana  in  violation  of  a  statute  of  Illinois  can 
be  regarded  as  in  contravention  of  the  public  policy  of  Wisconsin. 

The  general  rule  stated  above  is  based  in  some  cases  on  the  fun- 
damental doctrine  that  a  marriage  valid  where  entered  into  is  valid 
everywhere,76  and  in  other  instances  on  the  theory  that  the  statutes 


73  Kurd's  Rev.  St.  1915-16,  c.  40,  §  la. 

7*  Southern  Pac.  Co.  v.  Dusablon,  48  Tex.  Civ.  App.  203,  106  S.  W.  766 ; 
Kaufman  v.  Geoson,  [1904]  1  K.  B.  591. 
76  See  ante,  p.  67. 


74  MARRIAGE  (Ch.  1 

restricting  the   right   to   marry  after  divorce   are   penal    in   their 
nature  and  therefore  have  no  extraterritorial  effect.76 

In  view  of  the  theory  that  the  statutes  are  penal  in  their  nature, 
it  has  been  held  that  if  residents  of  one  state  go  into  another  state 
and  marry,  contrary  to  the  restrictive  statutes  of  the  latter  state, 
intending  to  return,  and  in  fact  returning,  to  the  state  of  their 
residence,  where  the  marriage  would  have  been  valid,  the  marriage 
will  be  there  upheld.  Thus  it  was  held  by  the  Louisiana  court 
that  the  prohibition  of  the  New  York  statute  to  the  effect  that  no 
second  or  other  subsequent  marriage  should  be  contracted  by  any 
person  during  the  lifetime  of  any  former  husband  or  wife  of  such 
person,  in  case  the  former  marriage  was  dissolved  on  the  ground  of 
adultery,  had  no  extraterritorial  effect,  being  a  penal  statute,  and 
that  it  could  not  be  given  the  effect  of  annulling  a  marriage  be- 
tween persons  at  the  time  residing  abroad,  and  intending  to  con- 
tinue to  reside  abroad,  notwithstanding  it  was  solemnized  in  New 
York.71  So,  also,  in  a  Maine  case  it  was  held  that  where  a  husband 
obtained  a  divorce  from  his  wife  for  her  fault,  by  the  decree  of  a 
court  of  another  state,  which  prohibited  the  wife  from  remarrying, 
the  wife  still  residing  in  Maine,  the  prohibition  to  remarry  was  in 
the  nature  of  a  penalty,  and  had  no  force  as  a  disability  to  remarry 
in  another  state,  and  therefore  such  disability  did  not  attach  to 
the  person  of  the  wife  in  Maine.78 

76  Inhabitants  of  Phillips  v.  Inhabitants  of  Madrid,  83  Me.  205,  22  f  tl.  114, 
12  L.  R,  A.  862,  23  Am.  St.  Rep.  770;    Ponsford  v.  Johnson,  Fed.  Cas.  No. 
11266. 

77  Succession  of  Hernandez,  46  La.  Aim.  962,  15  South.  461,  24  L.  R.  A. 
831.     See,  also,  Frame  v.  Thormann,  102  Wis.  653,  79  N.  W.  39;    Snuffer  v. 
Karr,  197  Mo.  182,  94  S.  W.  983,  7  Ann.  Cas.  780;    State  v,  Shattuck,.  69. 
Vt.  403,  38  Atl.  81,  40  L.  R.  A.  428,  60  Am.  St.  Rep.  936. 

78  inhabitants  of  Phillips  v.   Inhabitants  of  Madrid,  83  Me.  205,  22  Atl. 
114,  12  L.  R.  A.  862,  23  Am.  St.  Rep.  770.    It  was  also  held  in  this  case  that 
the  prohibition  to  marry  contained  in  the  statutes  of  one  state  did  not  apply 
to  divorces  granted  in  another  state. 


§  31)  RIGHTS  AND   DUTIES   INCIDENT   TO   COVERTURE  75 

CHAPTER  II 
BIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  IN  GENERAL 

31.  Right  to  Cohabitation  and   Intercourse. 

32-33.  Restraint  and  Correction  of  Wife. 

34-35.  Support  of  "Wife  and  Family. 

36.  Right  to  Determine  Family  Domicile. 

37.  Crimes  of  Married  Women. 

38.  Crimes  as  between  Husband  and  Wife, 
39-42.  Torts  of  Married  Women. 

43.  Torts  as  between  Husband  and  Wife. 

44.  Torts  Against  Married  Women. 

45-46.    Actions  for   Enticing,  Harboring,    or   Alienation   of  Affection. 
47.    Action  for  Criminal  Conversation. 

"By  marriage,"  says  Blackstone,  "the  husband  and  wife  are  one 
person  in  law.  The  very  being  or  legal  existence  of  the  woman  is 
suspended  during  the  marriage,  or  at  least  is  incorporated  and 
consolidated  into  that  of  the  husband,  under  whose  wing,  protec- 
tion, and  cover  she  performs  everything ;  and  is  therefore  called,  in 
our  law  French,  a  'feme  covert' — 'foemina  viro  co-operta' ;  is  said  to 
be  'covert  baron/  or  under  the  protection  and  influence  of  her  hus- 
band, her  baron  or  lord;  and  her  condition  during  her  marriage 
is  called  her  'coverture.'  Upon  this  principle  of  a  union  of  person 
in  husband  and  wife  depend  almost  all  the  legal  rights,  duties,  and 
disabilities  that  either  of  them  acquire  by  the  marriage  "  x 

RIGHT  TO  COHABITATION  AND  INTERCOURSE 

31.  Marriage  mutually  entitles  the  husband  and  wife  to  cohabita- 
tion and  intercourse,  but  in  this  country  there  is  no  way  in 
which  this  right  can  be  judicially  enforced. 

1 1  Bl.  Comm.  442.  "Coverture"  is  the  legal  condition  of  a  married  wo- 
man. Perkins  v.  Blethen,  107  Me.  443,  78  Atl.  574,  31  L,.  R,  A.  (N.  S.)  1148. 
At  common  law  the  husband  and  wife  are  one  person  in  law,  and  the  wife's 
legal  existence  is  suspended  during  the  marriage  and  consolidated  into  that 
of  her  husband.  Heyman  v.  Heyman,  19  Ga.  App.  634,  92  S.  E.  25.  In  pro- 
ceedings which  from  their  very  nature  make  a  husband  and  wife  opposite 
parties,  the  legal  fiction  of  unity  of  person  by  marriage  will  not  be  followed 
to  destroy  the  rights  of  either.  State  ex  rel.  Taubman  v.  Davis,  199  Mo.  App. 
439,  203  S.  W.  654. 


76  BIGHTS  AND  DUTIES  INCIDENT  TO   COVERTURE  (Ch.  2 

Marriage  entitles  the  husband  and  wife  to  each  other's  society; 
that  is,  they  are  mutually  entitled  to  cohabitation.2  And,  in  addi- 
tion to  this,  they  are  mutually  entitled  to  sexual  intercourse.8  The 
law,  in  this  country  at  least,  cannot,  as  could  be  done  in  England, 
enforce  the  right  to  cohabitation  and  intercourse  in  a  suit  for  resti- 
tution of  conjugal  rights.4  But  the  right  is  essential  to  the  mar- 
riage state,  and  is  the  basis  of  many  of  the  personal  rights  of  the 
spouses.  It  is  recognized  by  the  law  in  many  ways.  Thus  a  prom- 
ise by  a  husband  to  his  wife  to  pay  her  money  if  she  will  cohabit 
with  him,  or  permit  him  to  have  sexual  intercourse,  would  be  void 
for  want  of  consideration,  as  the  only  consideration  therefor  is  the 
doing  by  the  wife  of  something  which  she  is  already  bound  in  law 
to  do.6  Other  illustrations  of  the  recognition  of  the  right  to  co- 

2  The  right  of  "consortium"  is  a  right  growing  out  of  the  marital  relation, 
which  the  husband  and  wife  have,  respectively,  to  enjoy  the  society  and 
companionship  and  affection  of  each  other  in  their  life  together.  Feneff  v. 
New  York  Cent.  &  H.  R,  R.  Co.,  203  Mass.  278,  89  N.  E.  436,  24  L.  R.  A. 
(N.  S.)  1024,  133  Am.  St.  Rep.  291.  Right  of  either  husband  or  wife  to  con- 
sortium of  their  respective  spouse,  as  distinguished  from  right  of  service 
belonging  to  husband  or  right  of  support  belonging  to  wife,  is  property,  al- 
though of  a  somewhat  sentimental  character.  Larisa  v.  Tiffany  (R.  I.)  105 
Atl.  739.  As  against  third  persons,  either  spouse  has  the  right  of  custody 
of  the  person  of  the  other.  Ex  parte  Chace,  26  R.  I.  351,  98  Atl.  978,  6£  L. 
R.  A.  493,  3  Ann.  Cas.  1050,  Cooley,  Gas.  Persons  and  Domestic  Relations,  35 ; 
State  ex  rel.  Scott  v.  Lowell,  78  Minn.  16G,  80  N.  W.  877,  46  L.  R.  A.  440,  79 
Am.  St.  Rep.  358 ,  Cooley,  Cas.  Persons  and  Domestic  Relations,  22. 

»  In  law  "cohabitation"  is  properly  used  to  designate  the  living  together 
of  a  man  and  woman  as  husband  and  wife,  though  the  term  is  often  er- 
roneously used  in  the  sense  of  sexual  intercourse.  Properly  speaking,  "co- 
habitation" does  not  necessarily  imply,  sexual  intercourse.  1  Bish.  Mar., 
Div.  &  Sep.  §  1669,  and  note;  Yardley's  Estate,  75  Pa.  207;  Pollock  v. 
Pollock,  71  N.  Y.  137,  141.  Marriage  is  a  civil  contract,  and  the  wife  owes 
to  the  husband  the  same  full  performance  of  marital  duties  that  he  owes 
to  her.  Richardson  v.  Richardson  (Sup.)  114  X.  Y.  Supp.  912.  A  husband  and 
wife  are  "living  together"  when  they  dwell  under  the  same  roof,  eat  at  the 
same  table,  and  hold  themselves  out  to  the  world  and  conduct  themselves 
towards  each  other  as  husband  and  wife,  and  it  is  incorrect  to  say  that  they 
are  not  living  as  husband  and  wife  when  they  do  not  occupy  the  same  room 
or  have  sexual  Intercourse.  Levy  v.  Goldsoll,  62  Tex.  Civ.  App.  257,  131  S. 
W.  420. 

«  Schouler,  Husb.  &  W.  §§  482,  483 ;    1  Bish.  Mar.,  Div.  &  Sep.  §  69. 

»  Roberts  v.  Frisby,  38  Tex.  219;  Relthmaier  v.  Beckwith,  35  Mich.  110. 
There  may  be  circumstances  under  which  a  promise  by  a  wife  to  continue 
to  cohabit  with  her  husband  would  constitute  a  consideration  for  his  prom- 
ise given  in  return.  This  would  be  so  in  any  .case  where  the  conduct  of  the 
husband  had  been  such  as  to  entitle  the  wife  to  leave  him.  In  Phillips  v. 
Meyers,  82  111.  67.  25  Am.  Rep.  295,  for  instance,  a  note  executed  by  a  hus- 
band for  the  benefit  of  his  wife,  in  consideration  of  her  discontinuing  a  suit 
for  divorce  on  the  ground  of  his  drunkenness  and  abuse,  was  upheld. 


§    31)  RIGHT   TO   COHABITATION   AND  INTERCOURSE  77 

habitation  and  intercourse  are  in  the  fact  that  a  marriage  may  be 
annulled  on  the  ground  of  impotence  existing  at  the  time  of  the 
marriage,  that  desertion  is  very  generally  made  a  ground  for  di- 
vorce, and  that  it  is  not  rape  for  a  husband  to  have  intercourse 
with  his  wife  by  force,  and  against  her  will.  While  a  husband 
is  thus  entitled  to  sexual  intercourse  with  his  wife,  he  cannot  com- 
pel her  to  submit  when  not  in  a  condition  to  do  so,  as  where  she  is 
ill.  Nor  can  he  compel  her  to  submit  to  excessive  intercourse,  en- 
dangering her  health,  or  to  intercourse  with  him  while  he  is  dis- 
eased. This  would  be  cruelty,  and  in  some  states  a  ground  for 
divorce.6 

A  wife  may  be  justified,  under  certain  circumstances,  in  leaving 
her  husband,  and  living  apart  from  him.  Extreme  cruelty  or  adul- 
tery on  his  part  would  justify  her  in  taking  such  a  course.  Any 
cause  that  would  entitle  her  to  sue  for  a  divorce  would  undoubtedly 
justify  her.  And,  though  there  is  some  doubt  on  the  subject,  it  is 
held  in  some  jurisdictions  that  she  may  be  so  justified  by  causes 
which  are  not  sufficient  to  entitle  her  to  a  divorce.7  In  like  man- 
ner, a  husband  may  be  justified  in  leaving  his  wife.8  The  question 
is  one  of  great  importance;  for,  if  either  husband  or  wife  deserts 
the  other  without  justification,  the  statutes  very  generally  entitle 
tr!e  deserted  spouse  to  a  divorce.9  In  addition  to  this,  there  are 
statutes  in  some  jurisdictions  rendering  a  husband  liable  to  a  crim- 
inal prosecution  if  he  abandons  his  wife  without  just  cause.10  A 
deserted  wife  may  also  sue  for  maintenance,11  and  she  has  the  pow- 

«  See  post,  p.  249. 

7  Watts  v.  Watts,  160  Mass.  464,  36  N.  E.  479,  23  L.  R.  A.  187,  39  Am. 
St.  Rep.  509. 

s  McChirg's  Appeal,  66  Pa.  366. 
»  See  post,  p.  •  257. 

10  State  v.  Schweitzer,  57  Conn.  532,  18  Atl.  787,  6  L.  R.  A.  125;    State  v. 
Fuchs,  17  Mo.  App.  458 ;    State  v.  Broyer,  44  Mo.  App.  393 ;   State  v.  Witham, 
70  Wis.  473,  35  N.  W.  934;   Cuthbertson  v.  State,  72  Neb.  727,  101  N.  W.  1031; 
Virtue  v.  People,  122  111.  App.  223;    Spencer  v.  State,  132  Wis.  509,  112  N. 
W.  462,  122  Am.  St.  Rep.  989,  13  Ann.  Cas.  969. 

11  Stim.  Am.  St.  Law,  §  6351;    Kinsey  .v.  Kinsey,  37  Ala.  393;    Simpson 
v.   Simpson,  31  Mo.  24;    McMullen  v.   McMullen,   10  Iowa,  412;     Elliott  v. 
Elliott,  48  N.  J.  Eq.  231,  21  Atl.  381 ;    Smith  v.  Smith,  35  Ind.  App.  610,  74 
N.  E.  1008;    Rhoades  v.  Rhoacles,  78  Neb.  495.  Ill  N.  W.  122,  126  Am.  St. 
Rep.  611.    In  Iowa  it  has  been  held  that  a  suit  for  separate  maintenance  can- 
not be  maintained  except  for  a  cause  tht  would  warrant  a  decree  of  divorce. 
Shors  v.  Shors,  133  Iowa,  22,  110  N.  W.  16.     But  see  Mellanson  v.  Mellan- 
.HOU,  113  111.  App.  81,  holding  that  a  wife,  in  order  to  obtain  separate  mainte- 
nance, need  not  show  a  statutory  ground  for  divorce;    but  it  is  sufficient  if 


78  RIGHTS  AND  DUTIES  INCIDENT   TO   COVERTURE  (Ch.  2§ 

er  to  bind  her  husband  for  necessaries  to  a  much  greater  extent 
than  when  living  with  him,  and  being  supported  by  him.12 


RESTRAINT  AND  CORRECTION  OF  WIFE 

32.  A  husband  has  no  right  to  restrain  his  wife  of  her  liberty,  ex- 

cept where  restraint  is  necessary,  either: 
EXCEPTIONS— (a)  To  prevent  her  from  committing  a  crime. 

(b)  To  prevent  her  from  committing  adultery. 

(c)  Perhaps,  to  prevent  her  from  committing  a  tort  for  which 

he,  as  her  husband,  would  be  liable. 

(d)  Perhaps,  to  prevent  her  interference  with  his  parental  au- 

thority over  his  children. 

33.  A  husband  has  no  right  to  chastise  his  wife  in  any  case. 

Restraint 

The  text-books  generally  state  that  the  husband  has  the  right  to 
restrain  his  wife's  person.  Kent  says  that  the  law  ha*s  given  the 
husband  a  reasonable  superiority  and  control  over  her  person,  and 
that  he  may  even  put  gentle  restraint  upon  her  liberty.18  The  early 
cases  support  this  view,14  and  the  right  has  been  recognized  in«a 
recent  English  case,15  where  it  was  held  that  the  law  places  the 
wife  under  the  guardianship  of  the  husband,  and  entitles  him,  for 
the  sake  of  both,  to  protect  her  from  the  danger  of  unrestricted 
intercourse  with  the  world,  by  enforcing  cohabitation  and  a  com- 
mon residence.  Here,  the  wife  having  left  her  husband,  he  brought 
suit  for  restitution  of  conjugal  rights,  and  she  failed  to  answer. 
Thereupon  he  decoyed  her  to  his  house,  and  restrained  her  there 
against  her  will.  It  was  held  that  he  was  justified  in  thus  forcibly 
detaining  her.  This  case,  however,  has  been  recently  overruled  by 
the  court  of  appeal  in  a  case  where  the  husband,  having  obtained 
a  decree  for  restitution  of  conjugal  rights,  caused  his  wife  to  be 

a  persistent,  unjustifiable  course  of  conduct  on  the  part  of  the  husband  be 
shown  which  necessarily  renders  the  life  of  the  wife  miserable. 

12  See  post,  p.  176. 

132  Kent,  Comm.  181. 

n  Rex  v.  Lister,  1  Strange,  478.  In  this  case  it  was  said  that  when  a 
wife  makes  undue  use  of  her  liberty,  either  by  squandering  away  the  hus- 
band's estate,  or  going  into  lewd  company,  it  is  lawful  for  the  husband  to 
lay  such  a  wife  under  restraint. 

IB  In  re  Cochrane  (1840)  §  Dowl.  631. 


§§    32-33)  RESTRAINT   AND   CORRECTION   OF   WIFE  79 

seized  in  the  street,  and  confined  in  his  house.16  The  Master  of  the 
Rolls  said  in  that  case:  "I  do  not  believe  that  an  English  husband 
has,  by  law,  any  such  right  over  his  wife's  person  as  has  been  sug- 
gested. I  do  not  say  that  there  may  not  be  occasions  on  which  he 
would  have  a  right  of  restraint,  though  not  of  imprisonment.  For 
instance,  if  the  wife  were  about  immediately  to  do  something  which 
would  be  to  the  dishonor  of  her  husband,  as  if  that  he  saw  his  wife 
in  the  act  of  going  to  meet  a  paramour,  I  think  that  he  might  seize 
her  and  pull  her  back." 

The  limits  of  the  doctrine  of  the  husband's  right  of  restraint  over 
his  wife  are  very  shadowy  and  undefined.  In  this  country  the  right 
has  been  recognized  so  far  as  to  allow  a  husband  to  restrain  his  wife 
from  committing  a  crime,17  or  from  interfering  with  his  exercise  of 
parental  authority  over  his  children.18  But  it  is  not  probable  that 
any  court  would  go  as  far  as  the  English  court  in  the  first  case  men- 
tioned above,  and  allow  a  husband  to  restrain  his  wife  merely  to 
compel  cohabitation  with  him,  or  to  prevent  her  from  doing  acts 
not  criminal,  nor  adulterous  or  tortious,  nor  interfering  with  his 
parental  authority.19  Perhaps,  as  it  would  be  only  reasonable,  he 
would  be  permitted  to  prevent  her  from  committing  a  tort  for  which 
he,  as  husband,  would  be  civilly  liable.20  A  man,  it  was  said  by 
the  Pennsylvania  court,  has  a  right  to  a  reasonable  control  of  his 
wife's  actions.  "It  is  a  sickly  -sensibility  which  holds  that  a  man 
may  not  lay  hands  on  his  wife,  even  rudely,  if  necessary,  to  prevent 
the  commission  of  some  unlawful  or  criminal  purpose."  21 

is  Reg.  v.  Jackson,  [1891]  1  Q.  B.  Div.  671. 

IT  Richards  v.  Richards,  1  Grant,  Cas.   (Pa.)  389. 

is  Gorman  v.  State,  42  Tex.  221;  Barber  v.  Barber,  168  App.  Div.  212,  153 
N.  Y.  Supp.  256. 

1 9  1  Bish.  Mar.,  Div.  &  Sep.  §  1624 ;  Schouler,  Dom.  Rel.  $  45.  "In  this 
country,"  says  Dr.  Bishop,  "where  we  reject  the  suit  for  the  restitution  of 
conjugal  rights,  repudiating,  therefore,  by  implication,  the  principle  of  a 
compelled  cohabitation,  whereon  it  is  founded,  there  is  apparently  no  just 
ground  for  permitting  a  husband  to  confine,  even  in  his  own  house,  a  sane 
wife,  who  is  simply  unwilling  to  dwell  with  him.  It  is  believed  that  none 
of  our  courts  will  recognize  this  authority.  Still  the  husband  must,  with  us, 
be  permitted  to  exercise  some  restraint;  for  our  law  makes  him  criminally 
responsible  for  her  acts  of  crime  committed  in  his  presence,  and  civilly  for 
her  torts,  whether  he  is  present  or  absent.  And  it  would  be  absurd  to  de- 
ny him  all  means  of  avoiding  these  heavy  liabilities.  He  must  have  the 
right  to  the  physical  control  over  her  necessary  to  free  himself."  1  Bish. 
Mar.,  Div.  &  Sep.  §  1624. 

201  Bish.  Mar.,  Div.  &  Sep.  §  1624. 

21  Richards  v.  Richards,  1  Grant,  Cas.  (Pa.)  389. 


80  RIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  (Ch.  2 

Chastisement 

According  to  Blackstone,  and  some  of  the  early  cases,  the  hus- 
band formerly  had  the  right  to  give  his  wife  moderate  correction.22 
No  such  right,  however,  is  recognized  to-day.  Chastisement  is 
unlawful  in  any  case,  and  will  render  the  husband  guilty  of  assault 
and  battery.28  Further  than  this,  if  sufficiently  severe,  or  often 
repeated,  under  the  statutes,  it  may  entitle  the  wife  to  a  divorce  on 
the  ground  of  cruelty.2*  As  was  said  by  Chancellor  Walworth  in 
a  New  York  case :  "Whatever  may  be  the  common  law  on  the 
subject,  the  moral  sense  of  this  community,  in  our  present  state 
of  civilization,  will  not  permit  the  husband  to  inflict  personal  chas- 
tisement on  his  wife,  even  for  the  grossest  outrage."  25 


SUPPORT  OF  WIFE  AND  FAMILY 

34.  At  common  law,  and  under  the  statutes  of  many  states,  it  is  the 

duty  of  the  husband  to  support  and  maintain  his  wife 
and  family,  if  he  is  able  to  do  so. 

35.  By  statute,  in  some  states,  the  husband  and  wife  are  made  joint- 

ly liable  for  family  expenses;  but  these  statutes  do  not 
relieve  the  husband  from  his  primary  liability  for  neces- 
.saries. 

In  General 

As  a  necessary  incident  to  the  marital  relation  there  is  imposed  on 
the  husband  the  duty  to  support  and  maintain  his  wife  and  family, 
if  he  is  able  to  do  so.26  This  duty  of  the  husband  to  support  his 

221  Bl.  Comm.  445.  "The  husband  hath  by  law  power  and  dominion  over 
his  wife,  and  may  keep  her  by  force  within  the  bounds  of  duty,  but  not  in 
a  violent  or  cruel  manner."  Bac.  Abr.  tit.  "Baron  and  Feme,"  B.  See  State 
v.  Rhodes.  61  N.  C.  453,  98  Am.  Dec.  78. 

231  Bish.  Mar.,  Div.  &  Sep.  §  1617;  Schouler,  Dom.  Rel.  §  44;  Com.  v. 
McAfee,  108  Mass.  458,  11  Am.  Rep.  383;  Pearman  v.  Pearman,  1  Swab. 
&  T.  601 ;  Perry  v.  Perry,  2  Paige  (N.  Y.)  501 ;  Reg.  v.  Jackson  (1891)  1  Q. 
B.  Div.  671 ;  Brown  v.  Brown,  88  Conn.  42,  89  Atl.  889,  52  L.  R.  A.  (X.  S.> 
185,  Ann.  Cas.  1915D,  70:  Jones  v.  Jones,  173  N.  C.  279,  91  S.  E.  960; 
Abbott  v.  Abbott,  67  Me.  304,  24  Am.  Rep.  27;  Com.  v.  Barry,  2  Green,  Or. 
Rep.  286,  note;  People  v.  Winters,  2  Parker,  Cr.  R.  (N.  Y.)  10;  Poor  v.  Poor, 
8  X.  H.  307,  29  Am.  Dec.  G64. 

2*  See  post,  p.  249. 

23  perry  v.  Perry,  2  Paige  (N.  Y.)  501. 

26  This  duty  exists  both  at  common  law  and  under  the  statutes  in  many 
"states.  Clifton  v.  Clifton,  83  \Y.  Va.  149,  98  S.  E.  72;  Heyman  v.  Heyman,  1£ 


§§  34-35)  SUPPORT   OF   WIFE  AND   FAMILY  81 

wife  does  not  rest  on  contract  but  springs  from  the  matrimonial 
relation.27  It  is  based  on  considerations  of  public  policy  28  and  can- 
not be  evaded  by  contract.28  The  common-law  liability  of  a  hus- 
band to  support  his  wife  cannot  be  extended  by  implication  from 
the  written  law  as  to  the  support  of  other  persons,  but  only  by 
statute  plainly  so  intended.30  The  duty  of  the  husband  is  con- 
ditioned on  her  willingness  to  perform  the  duty  she  owes  him  to 
live  with  and  make  a  home  for  him,31  and  if  she  separates  herself 
from  him,  and  refuses  to  live  with  him  without  just  cause,  he  is 
absolved  from  his  duty  to  support  her.82  The  support  which  the 
husband  must  furnish  is  such  as  is  reasonable  and  suitable  to  his 
condition  and  station  in  life  and  according  to  his  means.83 

Ga.  App.  ,634,  92  S.  E.  25 ;  In  re  Simonson's  Estate,  164  WSs.  590,  160  N.  W. 
1040;  Clisby  v.  Clisby,  160  Ala.  572,  49  South.  445,  135  Am.  St.  Rep.  110; 
Underbill  v.  Mayer,  174  Ky.  229,  192  S.  W.  14;  McConnell  v.  McConnell,  98 
Ark.  193,  136  S.  W.  931,  33  L.  R.  A.  (N.  S.)  1074;  Title  Ins.  &  Trust}  Co.  v. 
Ingersoll,  158  Cal.  474,  111  Pac.  360;  McCaddin  v.  McCaddin,  116  Md.  567, 
82  Atl.  554;  Fitzmaurice  v.  Buck,  77  Conn.  390,  59  Atl.  415;  De  Brauwere 
v.  De  Brauwere,  203  N.  Y.  460,  96  N.  E.  722,  38  L.  R.  A.  (N.  S.)  508,  affirming 
144  App.  Div.  521,  129  N.  Y.  Supp.  587 ;  State  v.  McPberson,  72  Wash.  371, 
130  Pac.  481,  Ann.  Cas.  1914D,  587 ;  Towery  v.  McGaw  (Ky.)  56  S.  W.  727 ; 
Fiukelstein  v.  Finkelstein,  174  App.  Div.  416,  161  N.  Y.  Supp.  166;  In  re 
Carroll,  65  Ind.  App.  146,  116  N.  E.  844.  The  duty  exists,  though  the  hus- 
band is  an  infant.  See  post,  p.  481.  He  cannot  escape  that  duty  by  desert- 
ing her  without  cause.  Merriam  v.  Merriam,  75  Wash.  389,  134  Pac.  1058. 

2  7  American  Mill  Co.  v.  Industrial  Board  of  Illinois,  279  111.  560,  117  N.  E. 
147;  Boehm  v.  Boehm,  88  N.  J.  Eq.  74,  101  Atl.  423.  If  finding  that  com- 
mon-law marriage  existed  between  parties  was  warranted  by  facts,  husband 
was  liable  for  wife's  maintenance  and  support.  .  Knecht  v.  Knecht,  261  Pa. 
410,  104  Atl.  676. 

as  In  re  Ryan's  Estate,  134  Wis.  431,  114  N.  W,  820,  15  L.  R.  A.  (N.  S.)- 
491,  126  Am.  St.  Rep.  1025;  In  re  Simonson's  Estate,  164  Wis.  590,  160  N.  W. 
1040. 

2»  In  re  Simonson's  Estate,  164  Wis.  590,  160  N.  W.  1040;  In  re  Ryaii'& 
Estate,  134  Wis.  431,  114  N.  W.  820,  15  L.  R.  A.  (N.  S.)  491,  126  Am.  St.  Rep. 
1025 ;  Weiserbs  v.  Weiserbs  (Sup.)  169  N.  Y.  Supp.  111. 

so  Richardson  v.  Stuesser,  125  Wis.  66,  103  N.  W.  261,  69  L.  R.  A.  829,  4 
Ann.  Cas.  784.  The  husband  is  not  bound  to  support  the  child  of  his  wife  by 
a  former  marriage.  McMahill  v.  McMahill,  113  111.  461;  Gay  v.  Ballou,  4 
Wend.  (N.  Y.)  403,  21  Am.  Dec.  158. 

si  Sturm  v.  Sturm,  80  Misc.  Rep.  277,  141  N.  Y.  Supp.  61. 

32  McKee  v.  Cunningham,  2  Cal.  App.  684,  84  Pac.  260;  Isaacs  v.  Isaacs, 
71  Neb.  537,  99  N.  W.  268;  Richardson  v.  Stuesser,  125  Wis.  66,  103  N.  W. 
261,  69  L.  R.  A.  829,  4  Ann.  Cas.  784 ;  Barefoot  v.  Barefoot,  83  N.  J.  Eq.  6S5, 
93  Atl.  192 ;  Wirth  v.  Wirth,  184  App.  Div.  643,  172  N.  Y.  Supp.  309 ;  Kientz 
v.  Kientz,  104  Ark.  381,  149  S.  W.  86 ;  State  v.  Hill,  161  Iowa,  279,  142  N.  W. 
231;  Pearson  v.  Pearson,  104  Misc.  Rep.  675,  173  N.  Y.  Supp.  563;  Rutledge 
v.  Rutledge,  177  Mo.  App.  469,  119  S.  W.  489. 

83  state  v.  McPherson,  72  Wash.  371,  130  Pac.  481,  Ann.  Cas.  1914D,  587;. 
TIFF.P.&  D.REL.(3o  ED.)— 6 


82  EIGHTS  AND  DUTIES   INCIDENT   TO  COVERTURE  (Ch.  2 

The  common-law  duty  of  a  husband  to  support  his  family  has 
not  been  changed  by  the  legislation  relating  to  married  women.34 
Nor  is  he  relieved  from  liability  because  the  wife  has  adequate 
means  of  her  own,  or  a  separate  estate.88  He  is  still  presumptively 
liable  unless  the  wife  by  express  contract  charges  herself  person- 
ally.86 In  some  states  statutes  have  been  passed  making  the  hus- 
band and  wife  jointly  liable  for  family  expenses,87  but  even  these 
statutes  do  not:  relieve  the  husband  from  his  primary  liability.88 

Failure  of  Husband  to  Furnish  Support 

If  the  husband  fails  or  neglects  to  support  his  wife,  she  may 
under  certain  limitations  bind  him  for  necessaries  as  his  agent. 
The  conditions  under  which  she  becomes  the  agent  of  her  husband 
in  this  respect  are  discussed  in  a  subsequent  section.39 

Same — Proceedings  to  Compel  Support 

Though  it  has  been  held  in  some  states  that  the  wife  cannot 
maintain  an  action  against  her  husband  for  support,40  in  most  of 
the  states  by  statute  a  wife  who  has  been  deserted  or  abandoned 
by  her  husband,  or  who  is  living  apart  from  him  because  of  his 


De  Brauwere  v.  De  Brauwere,  203  N.  Y.  460,  96  X.  E.  722,  38  K  R.  A.  (N.  S.) 
503,  affirming  144  App.  Div.  521,  129  N.  Y.  Supp.  5<S7 ;  Kemp  v.  Kemp,  144 
La.  671,  81  South.  221. 

««  Grandy  v.  Hadcock,  85  App.  Div.  173,  83  N.  Y.  Supp.  90 ;  Ruhl  v.  Heintze, 
97  App.  Div.  442,  89  N.  Y.  Supp.  1031.  A  statute  authorizing  a  married  wo- 
man to  contract  does  not  abrogate  the  common-law  liability  of  the  husband 
to  support  her.  Ponder  v.  Morris  &  Bros.,  152  Ala.  531,  44  South.  651 ;  Flynn 
v.  Messenger,  28  Minn.  208,  9  N.  W.  759,  41  Am.  Rep.  279. 

sspoole  v.  People,  24  Colo.  510,  52  Pac.  1025,  65  Am.  St.  Rep.  245;  Israel 
v.  Silsbee,  57  Wds.  222,  15  N.  W.  144 ;  Rabb  v.  Flenniken,  32  S.  C.  189,  10  S. 
E.  943;  State  v.  Hill,  161  Iowa,  279,  142  N.  W.  231;  American  Mill  Co.  v. 
Industrial  Board  of  Illinois,  279  111.  560,  117  N.  E.  147 ;  H.  G.  Goelitz  Co.  v. 
Industrial  Board  of  Illinois,  278  111.  164,  115  N.  E.  855. 

™  Grandy  v.  Hadcock,  85  App.  Div.  173,  83  N.  Y.  Supp.  90;  Ruhl  v.  Heintze. 
97  App.  Div.  442,  89  N.  Y.  Supp.  1031;  Flurscheim  v.  Rosenthal  (Sup.)  112 
N.  Y.  Supp.  1118. 

»7  See  post,  p.  84, 

as  Hudson  v.  Sholem,  65  111.  App.  61;  Taylor  v.  Taylor,  54  Or.  560,  103  Par. 
524;  In  re  Kosanke's  Estate,  137  Minn.  115,  162  N.  W.  1060.  Compare 
Underbill  v.  Mayer,  174  Ky.  229,  192  S.  W.  14. 

as  See  post,  p.  175. 

*o  irwin  v.  Irwin  (Tex.  Ctor.  App.)  110  S.  W-.  322.  And  see  Trotter  v. 
Trotter,  77  111.  510,  holding  that  wife  cannot  maintain  a  bill  for  maintenance 
where  she  seeks  no  other  relief.  A  woman  cannot  maintain  actioa  for  dam- 
ages on  the  ground  that  defendant,  while  he  was  her  husband,  wantonly  re- 
fused to  supply  her  with  necessaries.  Decker  v.  Kedley,  148  Fed.  681,  79 
C.  C.  A,  305. 


§§  34-35)  SUPPORT    OP   WIFE   AND   FAMILY  83 

fault,  may  maintain  a  suit  in  equity  or  an  action  in  the  nature  of 
a  suit  in  equity  for  maintenance.41  So,  too,  it  has  been  held  that, 
if  the  wife  is  obliged  to  maintain  herself  out  of  her  separate  estate, 
she  may  recover  from  the  husband  the  amount  so  expended.42  In 
many  states,  too,  it  is  by  statute  made  a  criminal  offense  for  the 
husband  to  abandon  his  wife,  thus  leaving  her  without  means  of 
support.43 

Effect  of  Contract  of  Wife 

At  common  law  the  wife  could  not  bind  herself  personally  on 
her  contract  even  for  necessaries,44  but  under  modern  statutes  in 
most,  if  not  all,  states,  it  is  competent  for  a  married  woman  to  bind 
herself  and  her  separate  estate  for  necessaries.45  It  must,  however, 
appear  clearly  that  she  intended  to  bind  herself.46 

41  See  the  statutes  of  the  various  states.    And  see  Hiner  v.  Hiner,  153  Cal. 
254,  94  Pac.  1044;    Bauer  v.  Bauer,  2  N.  D.  108,  49  N.  W.  418;    Judson  v. 
Judson,  171  Mich.  185,  137  N.  W.  103;   Jones  v.  Jones,  174  Ala.  461,  57  South.1 
376 ;    Brewer  v.  Brewer,  79  Neb.  726,  113  N.  W.  161,  13  L.  R.  A.  (N.  S.)  222 ; 
Ellett  v.  Ellett,  157  N.  C.  161,  72  S.  E.  861,  39  L.  R.  A.  (N.  S.)  1135,  Ann.  Cas. 
1013B,  1215 ;    Lewis  v.  Lewis,  39  Okl.  407,  135  Pac.  397.     In  some  states  it 
seems  to  be  the  rule  that  courts  of  equity  base  inherent  power  to  decree 
separate  maintenance,  irrespective  of  statute.    Cureton  v.  Cureton,  117  Tenn. 
103,  96  S.  W.  608 ;    State  v.  Superior  Court,  85  Wash.  72,  147  Pac.  436. 

42  Pearson  v.  Pearson,  104  Mine.  Rep.  675,  173  N.  Y.  Supp.  563;    Sodowsky 
v.  Sodowsky,  51  Okl.  689,  152  Pac.  390;    Weiserbs  v.  Weiserbs    (Sup.)  169  N. 
Y.  Supp.  111. 

43  See  the  statutes  of  the  various  states.     Such  abandonment  was  not  an 
offense  at  common  law.  -Grantland  v.  State,  8  Ala.  App.  319,  62  South.  470 ; 
State  v.  Witham,  70  Wis.  473,  35  N.  W.  934. 

-i*  Underbill  v.  Mayer,  174  Ky.  229,  192  S.  W.  14. 

4  s  Howe  v.  North,  69  Mich.  272,  37  N.  W.  213;  Miller  v.  Brown,  47  Mo. 
504,  4  Am.  Rep.  345;  Crisfield  v.  Banks,  24  Hun,  159;  Heugh  v.  Jones,  32 
Pa.  432;  Lavoie  v.  Dube,  229  Mass.  87,  118  N.  E.  179;  Bell  v.  Rossignol,  143 
Ga.  150,  84  S.  E.  542,  L.  R.  A.  1915D,  1184,  Ann.  Cas.  1917C,  576 ;  Edminston 
v.  Smith,  13  Idaho,  645,  92  Pac.  842,  14  L.  R,  A.  (N.  S.)  871,  121  Am.  St.  Rep. 
294;  Speckmann  v.  Foote  (Sup.)  138  N.  Y.  Supp.  380;  Lipinsky  v.  Revell, 
167  N.  C.  508,  83  S.  E.  320 ;  Adair  v.  Arendt,  126  Ark.  246,  190  S.  W.  445 ; 
Wilder  v.  Brokaw,  141  App.  Div.  811,  126  N.  Y.  Supp.  932 ;,  Underbill  v.  May- 
er, 174  Ky.  229,  192  S.  W.  14 ;  Charron  v.  Day,  228  Mass.  305,  117  N.  E.  347 ; 
Sherry  v.  Littlefield,  232  Mass.  220,  122  N.  E.  300;  Carstens  v.  Hanselman, 
61  Mich.  426,  28  N.  W,  159,  1  Am.  St.  Rep.  606;  Bonebrake  v.  Tauer,  67 
Kan.  827,  72  Pac.  521 ;  Mayer  v.  Lithauer,  28  Misc.  Rep.  171,  58  N.  Y.  Supp. 
1064;  Bazemore  v.  Mountain,  121  N.  C.  59,  28  S.  E.  17.  But  see  June  v. 
Labadie,  132  Mich.  135,  92  N.  W.  937,  where  itj  was  held  that  a  contract  to 

46  Feirier  v.  Boynton,  73  N.  J.  Law,  136,  62  Atl.  420,  Cooley,  Cas.  Persons 
and  Domestic  Relations,  S4;  Quisenberry  v.  Thompson  (Ky.)  43  S.  W.  723; 
Stevens  v.  Hush,  104  Misc.  Rep.  69,  171  N.  Y.  Supp.  41;  Strawbridge  v.  Wolff, 
66  Pa.  Super.  Ct.  328. 


84=  RIGHTS  AND   DUTIES   INCIDENT   TO   COVERTURE  (Ch.  2 

Joint  Liability  of  Husband  and  Wife  for  Family  Expenses 

In  several  states,  statutes  have  been  enacted  declaring  that  the 
husband  and  the  .wife  shall  be  jointly  liable  for  family  expenses, 
such  as  necessary  food,  clothing,  education  of  the  children,  etc.47 
These  statutes  are  for  the  benefit  of  creditors  only,  and  do  not 
change  the  rule  as  to  the  primary  liability  of  the  husband.48.  Since 
either  the  husband  or  the  wife  must  be  primarily  chargeable  with 
the  debt  before  liability  can  exist  under  the  statute,  there  can  be 
no  liability  for  goods  purchased  on  the  credit  of  a  third  person.49 

In  order  to  charge  either  spouse  under  these  statutes,  the  rela- 
tion of  husband  and  wife  must  exist,  and  the  expense  must  be  a 
"family"  expense.60  So,  to  charge  the  wife  under  such  statutes  for 

pay  the  board  of  an  adult  sister  and  her  child  was  invalid,  as  not  having 
reference  to  the  possessor's  separate  estate.  See,  also,  Chickering-Chase 
Bros.  Co.  v.  L.  J.  White  &  Co.,  127  Was.  83,  106  N.  W.  797,  holding  that 
she  has  no  power  to  contract  for  board  and  lodging  while. living  with  her 
husband. 

47  Rev.  St  Colo.  1908,  §  3021;  Kurd's  Rev.  St.  111.  1915-16,  c.  68,  §  15; 
Gen.  St.  Minn.  1913,  §  7146;  Comp.  Laws,  Utah,  1907,  §  1206;  Comp.  Laws, 
N.  D.,  1913,  §  4414 ;  Code  Iowa,  §  3165 ;  Comp.  St.  Neb.  c.  53,  §  1 ;  Lord's 
Oregon  Laws,  §  7039.  A  somewhat  similar  statute  formerly  existed  in  Ala- 
bama, but  has  been  repealed.  Ernst  v.  Hollis,  89  Ala.  638,  8  South.  122. 
These  statutes  are  not  retroactive  and  do  not  apply  to  expenses  incurred 
prior  to  their  enactment.  Kelly  v.  Canon,  6  Colo.  App.  465,  41  Pac.  833.  The 
statute  is  in  derogation  of  the  common  law.  Mandel  Bros.  v.  Ringstrom, 
189  111.  App.  564.  While  it  should  receive  reasonable  construction,  it 
should  not  be  extended  by  implication  to  matters  not  fairly  inferable  from 
the  words  used.  Staver  Carriage  Co.  v.  Beaudry,  138  111.  App.  147.  Under 
the  statute  there  may  be  a  Joint  or  several  judgment  against  the  husband  and 
wife.  Keefer  v.  Amicone,  45  Colo.  110,  100  Pac.  594.  The  provision  of 
Const.  §  213,  that  a  wife's  separate  property  shall  not  be  liable  for  her  hus- 
band's debts  does  not  render  unconstitutional  the  statute  providing  for  joint 
liability  for  family  expenses.  Banner  Mercantile  Co.  v.  Hendricks,  24  N.  D. 
16,  138  N.  W.  993. 

4.8  In  re  Skillman's  Estate,  146  Iowa,  601,  125  N.  W.  343,  140  Am.  St.  Rep. 
295 ;  In  re  Kosanke's  Estate,  137  Minn.  115,  162  N.  W.  1060 ;  Taylor  v.  Tay- 
lor, 54  Or.  560,  103  Pac.  524;  Hudson  v.  Sholcm,  65  111.  App.  61. 

49  Parker  v.  Joslin  Dry  Goods  Co.,  52  Colo.  238,  120  Pac.  1042,  Ann.  Cas. 
1913D,  633. 

'  so  Berow  v.  Shields,  48  Utah,  270,  159  Pac.  538.  Servants  are  members  of 
the  family  within  the  statute.  Pippin  v.  Jones,  52  Ala.  161.  Children  of 
husband  by  a  former  marriage  are  not  members  of  the  family  for  whose 
expenses  the  wife  can  be  held  liable  as  for  family  expenses.  May  v.  Smith, 
48  Ala.  483.  A  widow  after  the  death  of  her  husband  became  the  head  of  the 
family,  and  her  estate  was  liable  for  the  family  necessaries  purchased  by 
any  member  of  the  family,  though  over  age,  whether  prior  or  subsequent  to 
the  husband's  death,  Graham  &  Corry  y.  Work,  162  Iowa,  383,  141  X.  W. 
428, 


§§  34-35)  SUPPORT   OF   WIFE   AND   FAMILY  85 

goods  furnished  to  the  husband,  it  must  appear  that  the  husband 
and  wife  are  living  together  as  a  family.51  If  the  family  relation 
has  once  existed,  a  tradesman  who  sells  goods  without  knowledge 
or  means  of  knowledge  that  the  relation  has  ceased  by  separation, 
can  nevertheless  hold  the  husband  and  wife  jointly  liable.52  Such 
joint  liability  exists  for  goods  sold  while  the  husband  and  wife 
are  living  together,  though  they  are  not  delivered  until  the  day  of 
separation,  if  the  seller  is  ignorant  of  the  contemplated  separation.53 
The  liability  thus  imposed  on  the  wife  is  not  dependent  on  her 
having  a  separate  estate,84  nor  is  it  dependent  on  the  consent  or 
authorization  of  the  spouse  sought  to  be  charged.65  It  has  been 
held  in  Iowa  that  a  creditor  who  has  obtained  a  judgment  against 
the  husband  for  a  family  expense  may  in  an  equitable  action  sub- 
ject the  property  of  the  wife  to  the  payment  thereof,  without  first 
recovering  a  judgment  against  her;56  but  this  doctrine  has  been 
rejected  in  Nebraska,  on  the  ground  that,  under  the  statute,  the  lia- 
bility of  the  wife  is,  in  effect,  that  of  a  surety  only,  and  that  she  is 
entitled  to  her  day  in  court  before  any  judgment  can  be  recovered 
against  her.  She  may  be  able  to  show  that  the  goods  furnished 
were  not  a  family  expense,  or  that  they  were  sold  on  the  exclusive 
credit  of  the  husband,  or  some  other  fact  exempting  her  from 
liability.57 

si  Oilman  v.  Mathews,  20  Colo.  App.  170,  77  Pac.  366;  O'Brien  v.  Galley- 
Stockton  Shoe  Co.  (Colo.)  173  Pac.  544 ;  Berow  v.  Shields,  48  Utah,  270,  159 
Pac.  538.  A  family  still  exists,  though  there  is  a  mere  temporary  separation, 
but  not  if  the  separation  is  permanent.  Berow  v.  Shields,  48  Utah,  270, 
159  Pac.  538. 

52  Stoutenborough  v.  Rammel,  123  111.  App.  487.  But  compare  Hudson 
v.  Sholem,  65  111.  App.  61,  holding  that  household  furnishings  sold  to  the 
wife  in  contemplation  of  separation  and  intended  for  her  personal  use  are 
not  a  family  expense  within  the  statute.  The  wife  cannot  be  held  liable  as 
for  a  "family  expense"  for  the  board  of  her  husband,  where  he  has  left 
home  in  contemplation  of  a  separation.  Vase  v.  Myott,  141  Iowa,  506,  120  N. 
W.  58,  21  L.  R.  A.  (N.  S.)  277. 

os  Arnold  v.  Keil,  81  111.  App.  237. 

o*  Banner  Mercantile  Co.  v.  Hendricks,  24  N.  D.  16,  138  N.  W.  993. 

65Mandel  Bros.  v.  Ringstrom,  189  111.  App.  564;  Hudson  v.  King,  23  111. 
App.  118.  Compare  Haggard  v.  Holmes,  90  Iowa,  308,  57  N.  W,  871,  holding 
that,  where  the  husband  purchased  an  atlas  and  history  against  the  protest 
of  the  wife,  she  cannot  be  held,  in  the  absence  of  evidence  that  it  was  family 
expense. 

6flBoss  v.  Jordan,  118  Iowa,  204,  89  N.  W.  1070,  92  N.  W.  Ill;  Frost  v. 
Parker,  65  Iowa,  178,  21  N.  W.  507  (holding  that  the  assignee  of  the  judg- 
ment may  enforce  it  against  the  wife). 

57  George  v.  Edney,  36  Neb.  604,  54  N.  Wf  586.  And  see  also  Janiiey  v. 
Buell,  55  Ala.  408. 


86  RIGHTS   AND    DUTIES    INCIDENT   TO   COVERTURE  (Ch.  2 

A  note  given  by  the  husband  for  family  expenses  is  not  conclu- 
sive on  the  wife,  either  as  to  existence  of  the  debt  or  the  amount 
thereof.58  If  the  claim  has  become  barred  by  the  running  of  .the 
statute  of  limitations,  it  cannot  be  revived,  as  against  the  wife,  by 
the  husband  without  her  consent.59 

What  are  Family  Expenses 

Family  expenses,  within  the  meaning  of  the  statutes,  are  ex- 
penses incurred  for  something  used  in  the, family,  or  beneficial  to  the 
family.60  The  term  is  not  necessarily  synonymous  with  "neces- 
saries." 81  The  term  includes  expenses  incurred  for  food,62  cloth- 
ing,63 household  utensils  84  and  hire  of  domestic  servants,65  rent 

68  McCartney  &  Sons'  Co.  v.  Carter,  129  Iowa,  20,  105  N.  W.  339,  3  L.  K. 
A.  (N.  S.)  145;  Dale  v.  Marvin,  76  Or.  528,  148  Pac.  1116,  Ann.  Cas.  1917C, 
557,  rehearing  denied  76  Or.  528,  148  Pac.  1151.  If  the  original  debt  is  an 
existing  claim  not  barred  by  the  statute  of  limitations,  the  wife  would  be 
liable  on  a  note  given  by  the  husband  for  the  debt.  Lawrence  v.  Sinnamon, 
24  Iowa,  80. 

5»  Lewis  v.  Lynch,  61  111.  App.  476.  Compare  Vest  v.  Kramer  (Iowa)  114 
N.  W.  S86,  14  L.  R.  A.  (N.  S.)  1032,  holding  that  a  wife's  liability  for  physi- 
cians' services  rendered  in  her  husband's  last  sickness  was  a  statutory  lia- 
bility enforceable  against  her  by  ordinary  action  within  five  years,  though 
the  physicians'  claim  against  the  husband's  estate  was  barred  by  their  fail- 
ure to  prove  the  same  in  time. 

«o  Straight  v.  McKay,  15  Colo.  App.  60,  60  Pac.  1106;  Fitzgerald  v.  Mc- 
Carty,  55  Iowa,  702,  8  N.  W.  646;  Hyman  v.  Harding,  162  111.  357,  44  N.  E. 
754.  In  an  action  against  husband  and  wife  under  the  statute,  it  need  not 
be  proved  that  every  article  furnished  was  of  a  domestic  character,  but 
deductions  may  be  made  for  those  that  were  not.  Meier  &  Frank  Co.  v. 
Mitlehner,  75  Or.  331,  146  Pac.  796.  A  dress  made  for  the  wife  which  she 
refused  to  accept  is  not  a  family  expense,  it  not  having  been  bought  for  family 
use  or  actually  used  or  kept  for  use  in  the  family.  Robertson  v.  Warden, 
197  111.  App.  478.  In  the  absence  of  proof  that  it  was  a  family  expense,  a 
wife  cannot  be  held  for  an  atlas  bought  by  her  husband  against  her  pro- 
test. Haggard  v.  Holmes,  90  Iowa,  SOS,  57  N.  \V.  871. 

6i  Mandel  Bros.  v.  Ringstrom,  189  111.  App.  564 ;  Ross  v.  Johnson,  125  111. 
App.  65 ;  Berow  v.  Shields,  48  Utah,  270,  159  Pac.  538. 

«2  Hajden  v.  Rogers,  22  111.  App.  557.  The  wife  is  not  liable  for  beer  fur- 
nished to  the  husband.  O'Neil  v.  Cardina,  159  Iowa,  78,  140  N.  W.  196,  44  L. 
R.  A.  (N.  S.)  1175. 

63  Ross  v.  Johnson,  125  111.  App.  65.  No  recovery  may  be  had  against  a 
husband  for  a  dress  made  on  the  order  of  his  wife  which  she  has  refused  to 
accept ;  it  not  having  been  bought  for  family  use  and  actually  used  or  kept 
for  use  in  the  family.  Robertson  v.  Warden,  197  111.  App.  478. 

«*  Finn  v.  Rose,  12  Iowa,  565  (cook  stove) ;  McDaniels  v.  McClure,  142  Iowa, 
370,  120  N.  W.  1031,  134  Am.  St.  Rep.  424  (heating  stove  and  other  utensils). 

05  Perkins  v.  Morgan,  36  Colo.  360,  85  Pac.  640;  Campbell  v.  Heuer,  139 
111.  App.  631. 


§§  34-35)  SUPPORT   OP   WIFE   AND  FAMILY  87 

of  dwelling  actually  occupied  by  the  family,86  but  not  otherwise.07 
Medical  services  rendered  to  members  of  the  family  are  also  a 
family  expense  within  the  statute.08  Expenses  incurred  for  musical 
instruments,6-9  for  a  buggy  for  the  use  of  the  family,70  and  for 
jewelry  71  have  been  held  to  be  family  expenses.  It  has,  however, 
been  held  that  money  borrowed  to  pay  family  expenses  is  not  with- 
in the  statute.72  Of  course,  the  term  "family  expenses"  cannot  be 
extended  to  apply  to  expenses  incurred  in  the  management  of  a 
business  conducted  by  either  spouse,  or  both  of  them.73 

Duty  of  Wife  to  Support  Husband 

At  common  law  the  wife  is  under  no  duty  to  support  her  hus- 
band; 74  but  she  may  be  made  responsible  for  his  support  by  stat- 
ute.79 Thus  it  has  been  held  in  North  Dakota  76  that  under  the 

66  Houghteling  v.  Walker  (C.  C.)  100  Fed.  253,  'affirmed  Walker  v.  Hough- 
teling, 107  Fed.  619,  46  C.  C.  A.  512  (applying  Illinois  statute) ;    Straight  v. 
McKay,  15  Colo.  App.  60,  60  Pac.  1106;    McDonnell  v.  Solomon,  64  Colo.  226, 
170  Pac.  951.    But  see  Lewis  v.  France,  137  Minn.  333,  163  N.  W.  656,  L.  R. 
A.  1917 F,  860. 

67  Schurz  v.  McMenamy,  82  Iowa,  432,  48  N.  W.  806.     Rent  after  premises 
were  vacated  and  claim  for  damage  to  furniture  were  not  family  expense. 
Straight  v.  McKay,  15  Colo.  App.  60,  60  Pac.  1106. 

«8Murdy  v.  Skyles,  101  Iowa,  549,  70  N.  W.  714,  63  Am.  St.  Rep.  411; 
Leake  v.  Lucas,  65  Neb.  359,  93  N.  W.  1019,  62  L.  R,  A.  190;  Mueller  v. 
Kuhn,  59  111.  App.  353;  Vest  v.  Kramer  (Iowa)  114  N.  W.  886,  14  L.  R.  A. 
(N.  S.)  1032. 

69  Smedley  v.  Felt,  41  Iowa,  588;  Frost  v.  Parker,  65  Iowa,  178,  21  N.  W. 
507.  But  compare  Jones-Rosquist-Killen  Co.  v.  Nelson,  98  Wash.  539,  167 
Pac.  1130. 

TO  Houck  v.  La  Junta  Hardware  Co.,  50  Colo.  228,  114  Pac.  645,  32  L.  R,  A 
(N.  S.)  939;  McDaniels  v.  McClure,  142  Iowa,  370,  120  N.  W.  1081,  134  Am. 
St.  Rep.  424. 

71  Marquardt  v.  Flaugher,  60  Iowa,  148,  14  N.  W.  214  (ring) ;    Measham  v 
McNair,  103  Iowa,  695,  72  N.  W.  773,  38  L.  R.  A.  847,  64  Am.  St.  Rep.  202, 
holding  that  a  diamond  shirt  stud  worn  by  the  husband  for  personal  use  and 
adornment   is   a    family   expense    within    the    statute.     But   see   Hyman    v. 
Harding,   162  111.  357,  44  N.  E.  754,   affirming  Harding  v.   Hyman,   54  111. 
App.  434,  holding  that  a  ring  was  not  a  family  expense,  and  Otto  v.  Matthie, 
70  111.  App.  54,  holding  that  diamond  earrings  are  not. 

72  Davis  v.  Ritchey,  55  Iowa,  719,  8  N.  W.  669. 

73  Chamberlain  v.  Townsend,  72  Or.  207,  142  Pac.  782,  143  Pac.  924  (farm 
expenses) ;    Martin  Bros.  v.  Vertres,  130  Iowa,  175,  106  N.  W.  516  (feed  for 
horse  used  in  business) ;    Staver  Carriage  Co.  v.  Beaudry,  138  111.  App.  147 
(carriage  used  by  physician). 

T*wyily  v.  Collins,  9  Ga.  223;  Blackhawk  County  v.  Scott,  111  Iowa,  190, 
82  N.  W  492. 

75  Hickle  v.  Hickle,  6  Ohio  Civ.  Ct.  R.  490;    Santos  v.  Sweeney,  4  Phil. 

76  Hagert  v.  Hagert,  22  N.  D.  290,  133  N.  W.  1035,  38  L.  R.  A.  (N.  S.)  966, 
Ann.  Cas.  1914B,  925. 


88  BIGHTS  AND  DUTIES  INCIDENT   TO  COVERTURE  Ch.  2 

statute  of  that  state  7T  an  equitable  action  at  the  suit  of  the  husband 
will  lie  to  compel  the  wife,  who  is  amply  able  to  do  so,  to  support 
the  husband ;  he  being  unable  to  gain  his  own  livelihood  by  reason 
of  age  or  other  infirmity. 


36.  The  husband  has  a  right  to  fix  or  to  change  the  family  domicile, 
and  refusal  of  his  wife  to  follow  him,  without  sufficient  ex- 
cuse, will  amount  to  desertion. 

The  general  rule  is  that  on  marriage  the  domicile  of  the  wife 
merges  in  that  of  her  husband,  and  changes  with  his  during  the 
coverture.78  He  has  the  power  to  establish  the  family  domicile,  and 
it  is  the  duty  of  the  wife  to  follow  him,  and  her  refusal  to  do  so 
without  sufficient  excuse  amounts  to  desertion.79  Even  a  prom- 
ise before  marriage  not  to  take  her  away  from  the  neighborhood 
of  her  mother  and  friends  is  not  binding,  and  does  not  justify  her 
refusal  to  accompany  him  to  a  new  domicile.80 

Rep.  79.  And  see  Livingston  v.  Conant,  119  Cal.  xvii,  51  Pac.  859,  hold- 
ing that  under  Civ.  Code  Cal.  §§  155,  176,  a  wife  may  be  required  to  sup- 
port her  infirm  husband.  But  see  Blackhawk  County  v.  Scott,  111  Iowa, 
190,  82  N.  W.  492,  holding  that,  under  the  Iowa  statute  making  husband 
and  wife  jointly  liable  for  family  expenses,  a  wife  is  not  bound  to  pay  the 
expense  of  keeping  her  insane  husband  in  an  asylum. 

™  Rev.  Codes  1905,  §  4077  (Cornp.  Laws  1913,  §  4409). 

78  Dolphin  v.  Robins,  7  H.  L.  Cas.  390;  Greene  v.  Greene,  11  Pick.  (Mass.) 
410;  Pennsylvania  v.  Ravenel,  21  How.  103,  16  L.  Ed.  33;  Davis  v.  Davis, 

30  111.  ISO ;   Hackettstown  Bank  v.  Mitchell,  28  N.  J.  Law,  516. 

70  Hair  v.  Hair,  10  Rich.  Eq.  (S.  C.)  163;  Price  v.  Price,  75  Neb,  552,  106 
N.  W.  657,  Cooley  Cas.  Persons  and  Domestic  Relations,  41 ;  Birmingham 
v.  (XNeil,  116  La.  1085,  41  South.  323;  Winkles  v.  Powell,  173  Ala.  46,  55 
South.  536;  Hunt  v.  Hunt,  61  Fla.  630,  54  South.  390;  Purnell  v.  Purnell 
(N.  J.)  70  Atl.  187;  Bennett  v.  Bennett,  91  Vt.  54,  99  Atl.  254;  Hunt  v. 
Hunt,  29  N.  J.  Eq.  96;  Kennedy  v.  Kennedy,  87  111.  250;  Walker  v.  Laighton, 

31  N.  H.  111.    And  see  Klein  v.  Klein,  96  S.  W.  848,  29  Ky.  Law  Rep.  1042,  hold- 
ing that  it  is  the  duty  of  the  wife  to  accept  such  residence  as  the  husband  may 
select  without  unwarranted  parsimony  or  stubbornness  on  his  part.    See,  also, 
Richardson  v.  Stuesser,  125  Wis.  66,  103  N.  W.  261,  69  L.  R.  A.  829,  4  Ann. 
Cas.  784,  holding  that  the  common-law   liability  of  a  husband   to  support 
his  wife  does  not  extend  to  supporting  her  outside  the  matrimonial  home 
reasonably  chosen  by  him,  unless  he  refuses  to  do  so  there,  or  she  resides 
away  therefrom  by  his  consent. 

so  Jac.  Dom.  §§  215.  216;  Schouler,  Dom.  Rel.  §§  37,  38;  Franklin  v.  Frank- 
lin, 154  Mass.  515.  2S  N.  E.  681,  13  L.  R.  A.  843,  26  Am.  St  Rep.  266. 


§  36)  RIGHT   TO  DETERMINE   FAMILY    DOMICILE  89 

While  the  cases  generally  state  the  rule  to  be  that  the  husband 
has  the  absolute  right  to  establish  the  domicile  in  any  part  of  the 
world,  yet  the  right  is  undoubtedly  not  an  arbitrary  one,  but  one 
that  must  be  exercised  with  discretion,  according  to  the  exigencies 
and  conditions  of  the  case.81  Thus  it  was  said  in  a  Vermont 
case : 82  "While  we  recognize  fully  the  right  of  the  husband  to 
direct  the  affairs  of  his  own  house,  and  to  determine  the  place  of 
abode  of  the  family,  and  that  it  is  in  general  the  duty  of  the  wife 
to  submit  to  such  determinations,  it  is  still  not  an  entirely  arbitrary 
power  which  the  husband  exercises  in  these  matters.  He  must 
exercise  reason  and  discretion  in  regard  to  them.  If  there  is  any 
ground  to  conjecture  that  the  husband  requires  the  wife  to  reside 
where  her  health  or  her  comfort  will  be  jeoparded,  or  even  where 
she  seriously  believes  results  will  follow  which  will  almost  of  neces- 
sity produce  the  effect,  and  it  is  only  upon  that  ground  that  she 
separates  from  him,  the  court  cannot  regard  her  desertion  as 
continued  from  mere  willfulness."  83 

An  exception  to  the  general  rule  that  the  domicile  of  the  wife 
follows  that  of  the  husband  arises  in  cases  where  the  husband 
abandons  the  wife  and  removes  to  another  state  for  the  purpose 
of  obtaining  a  divorce,  or  when  the  wife  by  reason  of  the  mis- 
conduct of  the  husband  has  been  compelled  to  leave  him.  In  such 
cases  the  wife  can  acquire  a  domicile  of  her  own  distinct  from  that 
of  the  husband.84 

8il  Bish.  Mar.,  Div.  &  Sep.  §§  1713,  1714;  Gleason  v.  Gleason,  4  Wis.  64; 
Hardenbergh  v.  Hardenbergh,  14  Cal.  654 ;  Boyce  v.  Boyce,  23  N.  J.  Eq.  337 ; 
Bishop  v.  Bishop,  30  Pa.  412;  Molony  v.  Molony,  2  Addams,  Ecc.  249; 
Keech  v.  Keech,  38  Law  J.  Prob.  &  Mat  7;  Powell  v.  Powell,  29  Vt.  148; 
Albee  v.  Albee,  141  111.  550,  31  N.  E.  153.  See,  also,  In  re  Baurens,  117  La.  136, 
41  South.  442,  where  it  is  held  'that  the  obligation  of  a  husband  to  provide 
for  his  wife  and  children  at  the  matrimonial  domicile  is  not  discharged  if, 
by  reason  of  his  cruelty,  the' wife  is  compelled  to  seek  shelter  with  her 
minor  children  at  the  residence  of  her  father  in  a  neighboring  parish. 

82  Powell  v.  Powell,  29  Vt.  148. 

ss  gee,  also,  McKay  v.  McKay,  192  Mo.  App.  221,  182  S.  W.  124.  The  uni- 
versally recognized  right  of  the  husband  to  select  his  own  domicile  must 
be  reasonably  and  not  arbitrarily  exercised ;  the  question  in  each  case  to 
be  determined  on  the  peculiar  facts  and  circumstances  there  existing.  Spaf- 
ford  v.  Spafford  (Ala.)  74  South.  354,  L.  R.  A.  1917D,  773. 

**  See  post,  p.  245. 


90  BIGHTS   AND   DUTIES  INCIDENT  TO  COVERTURE  (Ch.  2 


CRIMES  OF  MARRIED  WOMEN 

37.  A  married  woman  is  responsible,  as  if  sole,  for  crimes  volun- 
tarily committed  by  her.  If  she  commits  an  offense  in  the 
presence  of  her  husband,  or,  though  not  in  his  immediate 
presence,  near  enough  to  be  under  his  immediate  influence 
and  control,  she  is  presumed  to  have  acted,  not  voluntarily, 
but  under  his  coercion;  and  he  is  responsible,  while  she 
is  excused.  This  presumption  may  always  be  rebutted 
by  showing  that  there  was  no  coercion.  In  some  jurisdic- 
tions it  is  held  that  the  rule  does  not  apply  to  treason, 
murder,  or  robbery. 

As  a  general  rule,  a  married  woman  is  answerable  personally  for 
her  crimes,  as  if  she  were  sole.85  Where,  however,  she  commits 
an  offense  in  the  presence  of  her  husband,  she  is  presumed  to  have 
acted  under  his  coercion,  and  he  must  suffer  therefor,  while  she  is 
excused  on  the  ground  of  compulsion.  An  early  case  on  this  point, 
decided  in  1352,  was  a  case  in  which  a  woman  was  indicted  for 
larceny.  The  jury  found  "that  she  did  it  by  coercion  of  her  hus- 
band, in  spite  of  herself,"  and  she  was  acquitted.86  The  fact  that 
the  wife  was  active  in  committing  the  crime,  or  even  more  active 
than  her  husband,  does  not  necessarily  render  her  guilty,  though 
this  fact,  of  course,  may  tend  to  rebut  the  presumption  of  coercion ; 
for  her  guilt  depends,  not  upon  the  fact  of  her  activity,  but  upon 
whether  that  activity  was  voluntary,  or  caused  by  her  husband's 

*s  A  married  woman  cannot  be  held  criminally  liable  for  the  violation  of 
a  contract  under  a  statute  declaring  such  violation  an  offense,  if  the  con- 
tract is  void.  State  v.  Robinson,  143  N.  C.  620,  58  S.  E.  918.  Since  a  hus- 
band and  wife  are  in  law  one  person,  they  cannot  between  themselves  be 
guilty  of  conspiracy.  People  v.  Miller,  82  Cai.  107,  22  Pac.  934;  Merrill  v. 
Marshall,  113  111.  App.  447.  The  wife  may  be  convicted  of  keeping  a  bawdy- 
house,  though  husband  rented  the  house.  Barker  v.  State,  64  Tex.  Cr.  R. 
IOC,  141  S.  W.  529.  See,  also,  Hudson  v.  Jennings,  134  Ga.  373,  67  S.  E.  1037 ; 
State  v.  Gill,  150  Iowa,  210,  129  N.  W.  821. 

so  Anon.,  Lib.  Ass.  137,  pi.  40.  And  see  Clark,  Cr.  Law,  77;  Clark,  Cr. 
Cas.  141;  Anon.,  Kelyng,  31;  Reg.  v.  Dykes,  15  Cox,  Cr.  Cas.  771;  Rex  v. 
Price,  8  Car.  &  P.  19;  Com.  v.  Neal,  10  Mass.  152,  6  Am.  Dec.  105;  Davis 
v.  State,  15  Ohio,  72,  45  Am.  Dec.  559;  State  v.  Houston,  29  S.  C.  10S,  6 
S.  E.  943;  Com.  v.  Daley,  148  Mass.  11,  18  N.  E.  579;  State  v.  Harvey, 
130  Iowa,  394,  106  N.  W.  938 ;  State  v.  Kelly,  74  Iowa,  589,  38  N.  W.  503 ; 
State  v.  Bell,  29  Iowa,  316;  Roberts  v.  People,  19  Mich.  401;  Mulvey  v. 
State,  43  Ala.  316,  94  Am.  Dec,  684 ;  State  v.  Baker,  110  Mo.  7,  19  S.  W.  222, 
33  Am.  St.  Rep.  414. 


§  37)  CRIMES    OF  MARRIED   WOMEN  91 

coercion.87  The  rule,  according  to  the  weight  of  authority,  does 
not  apply  to  treason  or  murder.88  "As  to  murder,  if  husband  and 
wife  both  join  in  it,  they  are  both  equally  guilty."  89  It  has,  how- 
ever, been  applied  even  in  the  case  of  murder;  and,  on  principle, 
there  is  no  reason  why  it  should  not  be.90  It  applies  to  assault 
with  intent  to  kill,91  to  burglary,92  and,  by  the  weight  of  opinion, 
to  robbery.93 

This  presumption  does  not  arise  from  the  mere  command  of  her 
husband.  She  must  have  been  in  his  presence,  or  so  near  that  he 
could  have  exerted  an  immediate  influence  and  control  over  her. 
There  is  no  "legal  presumption  that  acts  done  by  a  wife  in  her 
husband's  absence  are  done  under  his  coercion  or  control.  Indeed 
if  she,  in  his  absence,  do  a  criminal  act,  even  by  his  order  or  pro- 
curement, her  coverture  will  be  no  defense."  94  She  need  not,  how- 
ever, have  been  in  his  immediate  presence,  but  it  is  sufficient  if  she 
was  near  enough  to  be  under  his  influence  and  control.  It  was 
so  held  where  a  woman  was  indicted  for  an  unlawful  sale  of  in- 
toxicating liquors,  and  it  appeared  that  when  she  made  the  sale 
her  husband  was  not  in  the  room  with  her,  but  was  on  the  prem- 
ises.95 In  order  to  establish  the  fact  of  the  husband's  presence,  it 
is  not  necessary  to  show  that  the  act  was  done  literally  in  his  sight. 
If  he  was  near  enough  for  the  wife  to  be  under  his  immediate 
influence  and  control,  it  is  sufficient,  though  he  may  not  have  been 


s-  State  v.  Houston,  29  S.  C.  108,  6  S.  E.  943. 

88 At  common  law,  a  married  woman  was  not  responsible  for  crimes 
committed  in  the  presence  of  her  husband,  except  murder  and  treason ; 
but  for  crimes  committed  out  of  her  husband's  presence,  she,  was  as  re- 
sponsible as  if  single.  Morton  v.  State,  141  Tenn.  357,  209  S.  W.  644,  4^  A.  I/. 
R.  264. 

89Anon.,  Kelyng,  31.  And  see  Davis  v.  State,  15  Ohio,  72,  45  Am.  Dec. 
559;  Bibb  v.  State,  94  Ala.  31,  10  South.  506,  33  Am.  St.  Rep.  88.  See  dic- 
tum in  Com.  v.  Neal,  10  Mass.  152,  6  Am.  Dec.  105. 

so  state  v.  Kelly,  74  Iowa,  589,  38  N.  W.  503. 

»i  Roberts  v.  People,  19  Mich.  401. 

92Anon.,  Kelyng,  31;    State  v.  Bell,  29  Iowa,  316. 

'»B  Reg.  v.  Dykes,  15  Cox.  Cr.  Cas.  771;  People  v.  Wright,  38  Mich.  744, 
31.  Am.  Rep.  331;  Miller  v.  State,  25  Wis.  384;  Com.  v.  Daley,  148  Mass. 
11,  18  N.  E.  579;  Davis  v.  State,  15  Ohio,  72,  45  Am.  Dec,  559.  Contra: 
Bibb  v.  State,  94  Ala.  31,  10  South.  506,  33  Am.  St.  Rep.  88. 

94  Com.  v.  Butler,  1  Allen  (Mass.)  4;  Com.  v.  Feeney,  13  Allen  (Mass.) 
560;  State  v.  Potter,  42  Vt.  495;  Com.  v.  Munsey,  112  Mass.  287;  State 
v.  Shee,  13  R.  I.  535;  Rex  v.  Morris,  Russ.  &  R.  270;  Seller  v.  People,  77 
N.  Y.  411. 

»5  Com.  v.  Burk,  11  Gray  (Mass.)  437 ;   Com.  v.  Munsey,  112  Mass.  287. 


92  RIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE!       '          (Ch.  2 

in  the  same  room ;  for  if  he  was  on  the  premises,  and  near  at  hand, 
a  momentary  absence  from  the  room,  or  a  momentary  turning 
of  his  back,  might  still  leave  her  under  his  influence."  "No  exact 
rule,  applicable  to  all  cases,  can  be  laid  down  as  to  what  degree  of 
proximity  will  constitute  such  presence,  because  this  may  vary  with 
the  varying  circumstances  of  particular  cases;  and  where  the  wife 
did  not  act  in  the  direct  presence  of  her  husband,  or  under  his  eye, 
it  must  usually  be  left  to  the  jury  to  determine  incidentally  wheth- 
er his  presence  was  sufficiently  immediate  or  direct  to  raise  the 
presumption.  But  the  ultimate  question,  after  all,  is  whether  she 
acted  under  his  coercion  or  control,  or  of  her  own  free  will,  inde- 
pendently of  any  coercion  or  control  by  him;  and  this  is  to  be 
determined  in  view  of  the  presumption  arising  from  his  presence, 
and  of  the  testimony  or  circumstances  tending  to  rebut  it,  if  any 
such  exist."  97 

From  what  has  been  said,  it  will  be  seen  that  the  presumption  of 
coercion  is  not  conclusive,  even  where  the  wife  acted  in  the  im- 
mediate presence  of  her  husband;  but  it  may  always  be  rebutted 
by  showing  to  the  satisfaction  of  the  jury  that  she  acted  of  her  own 
free  will,  and  not  under  coercion.98 

In  some  states  the  common-law  rule  exempting  a  married  woman 
from  criminal  liability  for  acts  done  in  the  presence  of  her  hus- 
band, in  the  absence  of  a  showing  that  she  acted  without  coercion, 
has  been  changed  by  statute.  In  Georgia,  for  instance,  by  stat- 
ute, a  wife  is  not  excused  by  the  mere  presence  of  her  husband  \. 
but  it  must  be  made  to  appear,  in  order  to  excuse  her,  that  "violent 
threats,  commands,  or  coercion  were  used"  by  him.98 

se  Com.  v.  Munsey,  112  Mass.  287. 

87  Com.  v.  Daley,  148  Mass.  11,  18  N.  E.  579. 

» s  Reg.  v.  Cruse,  8  Car.  &  P.  553;  Blakeslee  v.  Tyler,  55  Conn.  397,  11 
Atl.  855;  People  v.  Wright,  38  Mich.  744,  31  Am.  Rep.  331;  Miller  v.  State, 
25  Wis.  384;  State  v.  Cleaves,  59  Me.  298,  8  Am.  Rep.  422;  Reg.  v.  Torpey, 
12  Cox,  Cr.  Cas.  45;  State  v.  Nowell,  156  N.  C.  648,  72  S.  E.  590;  Morton, 
v.  State,  141  Tenn.  357,  209  S.  W.  644,  4  A.  L.  R.  264;  Wagener  v.  Bill, 
19  Barb.  (N.  Y.)  321;  Com.  v.  Eagan,  103  Mass.  71;  U.  S.  v.  Terry  (D. 
C.)  42  Fed.  317.  As  by  showing  that  the  husband  was  crippled,  and  in- 
capable of  coercion.  Reg.  v.  Cruse,  supra. 

88  Bell  v.  State,  92  Ga.  49,  18  S.  E.  186.     In  view  of  the  Married  Wom- 
an's Act  of  1913   (Acts  1913,   c.  26),   there  is  no  longer  any   presumption 
that  the  wife  in  committing  a  crime  acts  under  coercion  of  husband.     Mor- 
ton v.  State,  141  Tenn.  357,  209  S.  W.  644,  4  A.  L.  R.  264. 


38)  CRIMES  AS   BETWEEN   HUSBAND  AND   WIFE  93 


CRIMES  AS  BETWEEN  HUSBAND  AND  WIFE 

38.  Generally,  husband  and  wife  are  criminally  liable  for  criminal 
acts  committed  against  each  other.  Because  of  the  rela- 
tion, however,  at  common  law 

(a)  Neither  can  commit  larceny,  burglary,  or  arson  against  the 

other ;  nor  is  one  who  assists  the  wife  guilty  of  larceny. 
EXCEPTION — This  does  not  apply  where  the  wife  is  an  adul- 
teress, or  elopes  for  the  purpose  of  adultery,  and  steals 
her  husband's  property. 

(b)  The  husband  cannot  commit  a  rape  upon  his  wife,  except : 
EXCEPTION — As  principal  in  the  second  degree,  or  as  acces- 
sory, by  abetting  or  assisting  another  to  ravish  her. 

The  principle  that,  in  the  eye  of  the  law,  husband  and  wife  are 
one  person,  prevents  certain  acts  by  the  one  or  the  other  of  them 
from  being  a  crime,  though  it  would  be  otherwise  were  the  same 
act  committed  against  a  stranger.  It  is  well  settled,  for  instance, 
that  at  common  law  neither  a  husband  nor  a  wife  can  commit  lar- 
ceny from  the  other.1 

And  so  far  is  this  doctrine  carried  that  a  third  person  who  as- 
sists a  wife  in  taking  her  husband's  property  is  not  guilty  of  lar- 
ceny.2 An  exception  to  this  rule  is  made  in  cases  where  a  wife  be- 
comes an  adulteress.  If  she  then  takes  her  husband's  property, 
animo  furandi,  she  commits  larceny;  and  so  does  her  paramour, 
if  he  assists  her  in  taking  it.8  "The  general  rule  of  law  is  that  a 

1  Clark,  Cr.  Law,  247 ;    Reg.  v.  Kenny,  13  Cox,  Cr.  Cas.  397,  2  Q.  B.  Div. 
307 ;   Keg.  v.  Tollett,  Car.  &  M.  112 ;   Thomas  v.  Thomas,  51  111.  162 ;    Snyder 
v.  People,  26  Mich.  106,  12  Am.  Rep.  302;    Com.  v.  Hartnett,  3  Gray  (Mass.) 
450;    Overton  v.  State,  43  Tex.  616;    State  v.  Banks,  48  Ind.  197;    Lamphier 
v.   State,  70  Ind.  317.     But  under  the  married  women's  property  act   (St. 
45  &  46  Viet.  c.  75),  §§  12,  16,  the  wife  may  be  convicted  of  larceny  of  her 
husband's   goods    wrongfully    taken    when    leaving,   deserting,    or    about    to 
leave  or  desert  him.     Rex  v.  James,  71  Law  J.  K.  B.  211,  [1902]  1  K.  B. 
540,  86  Law  T.  202,  50  Wkly.  Rep.  286,  66  J.  P.  217,  20  Cox,  Cr.  Cas.  156. 
And  see  Beasley  v.  State,  138  Ind.  552,  38  N.  E.  35,  46  Am.  St  Rep.  418, 
holding   that   under   married   woman's   property   statutes   husband   may   be 
guilty  of  larceny  of  wife's  goods. 

2  Clark,  Or.  Law,  247 ;    Reg.  v.  Tollett,  Car.  &  M.  112 ;   and  cases  in  the 
following  note. 

a  Reg.  v.  Avery,  8  Cox,  Cr.  Cas.  184 ;  Reg.  v.  Thompson,  2  Craw.  &  D. 
491;  Rex  v.  Clark,'!  Moody,  Cr.  Cas.  376,  note;  Reg.  v.  Featherstone,  6 
Cox,  Cr.  Cas.  376;  Rex  v.  Tolfree,  1  Moody,  Cr.  Cas.  243;  Reg.  v.  Tollett, 
Car.  &  M.  112 ;  State  v.  Banks,  48  Ind.  197,  198 ;  People  v.  Schuyler,  6  Cow. 


94  RIGHTS  AND  DUTIES   INCIDENT  TO  COVERTURE  (Ch.  2 

wife  cannot  be  found  guilty  of  larceny  for  stealing  the  goods  of  her 
husband,  and  that  is  upon  the  principle  that  the  husband  and  wife 
are,  in  the  eye  of  the  law,  one  person ;  but  this  rule  is  properly  and 
reasonably  qualified  when  she  becomes  an  adulteress.  She  there- 
by determines  her  quality  of  wife,  and  her  property  in  her  hus- 
band's goods  ceases."  * 

On  the  same  principle  of  unity  of  husband  and  wife,  with  the 
consequent  right  of  each  to  the  joint  possession  and  use  of  the 
other's  property,  neither  husband  nor  wife  can  commit  burglary 
or  arson,  as  against  the  other's  dwelling  house.8 
>  A  husband  has  a  legal  right  to  sexual  intercourse  with  his  wife, 
and  therefore  he  cannot  be  guilty  of  rape,  in  having  intercourse 
with  her  forcibly  and  against  her  will.6  He  may,  however,  be 
guilty  as  a  principal  in  the  second  degree,  or  as  accessory,  accord- 
ing to  the  circumstances,  if  he  aids  or  abets  another  in  a  rape  upon 
her.1 

With  the  exceptions  above  stated,  husband  and  wife  are  general- 
ly liable  to  the  criminal  law  for  criminal  acts  committed  against 
each  other.  If  either  kills  the  other,  he  or  she  is  liable  for  the  homi- 
cide. So  either  of  them  is  criminally  liable  for  an  assault  and  bat- 
tery on  the  other.8 

(N.  Y.)  572 ;  Clark,  Cr.  Law,  247,  248.  This,  it  has  been  said,  does  not 
apply  where  the  wife  merely  carries  away  her  necessary  apparel.  State  v. 
Banks,  48  Ind.  197,  198.  But  see  Reg.  v.  Tollett,  Car.  &  M.  112. 

*  State  v.  Banks,  48  Ind.  197,  198. 

s  Snyder  v.  People,  26  Mich.  106,  12  Am.  Rep.  302 ;  Rex  v.  March,  1  Moody, 
Cr.  Cas.  182;  State  v.  Toole,  29  Conn.  342,  76  Am.  Dec.  602;  Adams  v. 
State,  62  Ala.  177;  Clark,  Cr.  Law,  229;  Clark,  Cr.  Cas.  307.  Contra, 
under  modern  statutes.  Garrett  v.  State,  109  Ind.  527,  10  N.  E.  570.  But 
see  cases  cited  above,  in  which  it  is  shown  that  the  married  women's  acts 
are  not  to  be  construed  as  changing  the  common  law. 

6  Clark,  Cr.  Law,  190. 

i  Strang  v.  People,  24  Mich.  13 ;  People  v.  Chapman,  62  Mich.  280,  28  N. 
W.  896,  4  Am.  St.  Rep.  857 ;  State  v.  Dowell,  106  N.  C.  722,  11  S.  E.  525,  8 
L.  R.  A.  297,  19  Am.  St.  Rep.  568. 

s  Clark,  Cr.  Law,  212,  213;  Com.  v.  McAfee,  108  Mass.  458,  11  Am.  Rep. 
383;  State  v.  Oliver,  70  N.  C.  60;  State  v.  Finley,  4.  Pennewill  (Del.)  29, 
55  Atl.  1010;  Fulgham  v.  State,  46  Ala.  143;  Reg.  v.  Jackson,  [189^  1  Q. 
B.  Div.  671.  Where  a  husband,  concealing  from  his  wife  that  he  has  syph- 
ilis, an  infectious  disease,  communicates  it  to  her,  he  is  guilty  of  an  as- 
sault and  battery.  State  v.  Lankford,  6  Boyce  (Del.)  594,  102  Atl.  63.  A 
husband  may  be  convicted  of  slandering  his  wife  under  Revisal  1905,  § 
3640,  providing  that,  if  any  person  shall  attempt  in  a  wanton  and  malicious 
manner  to  destroy  the  reputation  of  an  innocent  woman  by  words  writ- 
ten or  spoken  which  amount  to  a  charge  of  incontinency,  he  shall  be  guilty 
of  a  misdemeanor.  State  v.  Fulton,  149  N.  C.  485,  63  S.  E.  145. 


§§  39-42)  TORTS   OF  MARRIED   WOMEN  95 

TORTS  OF  MARRIED  WOMEN 

39.  At  common  law  a  husband,  during  coverture,  is  liable  for  the 

torts  committed  by  his  wife,  either  before  or  during  cover- 
ture. This  liability  ceases,  however,  when  the  coverture 
is  determined  by  the  death  of  either  party,  or  by  a  divorce. 

40.  The  rules  governing  a  wife's  liability  for  her  own 'torts  are 

these : 

(a)  She  is  liable,  jointly  with  her  husband  during  coverture,  and 

solely  after  his  death  or  a  divorce, 

(1)  For  torts  committed  in  his  absence,  whether  committed 

by  his  direction  or  command,  or  not. 

(2)  For  torts  committed  in  his  presence,  but  not  by  his  direc- 

tion or  command,  express  or  implied. 

(b)  She  is  not  liable  at  all  for  torts  committed  in  his  presence, 

and  by  his  direction  or  command,  but  is  excused  on  the 
ground  of  coercion. 

(c)  Torts  committed  by  a  wife  in  her  husband's  actual  or  con- 

structive presence  are  presumed  to  have  been  committed 
by  his  direction  or  command;  but  this  presumption  is 
prima  facie  only,  and  may  be  rebutted. 

41.  Where  a  married  woman's  tort  is  so  connected  with  an  at- 

tempted contract  by  her  that  to  hold  her  liable  therefor 
would  be  to  recognize  the  contract,  neither  she  nor  her 
husband  is  liable  at  common  law. 

42.  These  rules  of  the  common  law  have  been  greatly  modified 

by  modern  statutes,  in  most  jurisdictions,  removing  the 
disabilities  of  married  women,  and  by  those  taking  from 
the  husband  the  rights  which  the  common  law  gave  him 
in  respect  to  his  wife's  property.  Thus — 

(a)  In  some  states  a  husband  is  no  longer  liable  for  the  torts 

of  Tiis  wife,  unices  he  participated  in  their  commission. 

(b)  In  other  states  he  is  liable  for  her  personal  torts,  like  slan- 

der or  assault,  but  not  for  torts  committed  in  the  control 
of  her  separate  property. 

(c)  Where  married  women  have  by  statute  been  given  the  pow- 

er to  contract,  they  may  be  liable  for  torts  in  connection 
with  their  contracts. 


96  RIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  (Ch.  2 

Common-Law  Doctrine 

At  common  law  a  husband  is  liable  for  the  frauds  and  other  torts 
of  his  wife,  whether  they  were  committed  by  her  before  marriage,9 
or  during  coverture.10  One  of  the  reasons  for  this  doctrine  was  that 
the  unity  of  husband  and  wife  rendered  the  wife  incapable  of  be- 
ing sued  alone.  Her  husband  had  to  be  joined  in  all  actions  against 
her.11  Another  reason  was  that  the  husband  became  the  absolute 
owner  of  his  wife's  personal  property,  and  had  the  right  to  receive 
her  earnings  and  the  rents  and  profits  of  her  real  estate,  so  that  it 
was  only  just  to  hold  him  liable  for  her  torts.12  Another  consid- 
eration was  that  he  should  not  permit  her  to  commit  torts.18  The 
liability,  however,  was  not  based  on  any  idea  that  he  was  himself 
guilty  of  her  torts,  even  in  contemplation  of  law.14  The  liability 
exists  even  where  the  husband  is  separated  from  his  wife,  so  long 
as  the  marriage  has  not  been  dissolved.15 

Where  a  wife  acts  in  the  absence  of  her  husband,  either  by  or 
without  his  command,16  or  where  she  acts  in  his  presence,  but  of 
her  own  volition,  and  without  any  coercion  by  him,17  she  also  is 

»  Macq.  Husb.  &  W.  72 ;  Schouler,  Husb.  &  W.  §  134 ;  Palmer  v.  Wake- 
field,  3  Beav.  227;  Hawk  v.  Harman,  5  Bin.  (Pa.)  43;  Hubble  v.  Fogartie, 
3  Rich.  (S.  C.)  413,  45  Am.  Dec.  775;  Phillips  v.  Richardson,  4  J.  J.  Marsh. 
(Ky.)  212 ;  Kowing  v.  Manly,  49  N.  Y.  192,  10  Am.  Rep.  346. 

i<>2  Kent,  Comm.  149;  Kowing  v.  Manly,  49  N.  Y.  192,  10  Am.  Rep.  346; 
Head  v.  Brjscoe,  5  Car.  &  P.  484;  Flesh  v.  Lindsay,  115  Mo.  1,  21  S.  W. 
907,  37  Am.  St.  Rep.  374 ;  Jag.  Torts,  216-223 ;  Baker  v.  Young,  44  111.  42,  92 
Am.  Dec.  149;  Fowler  v.  Chichester,  26  Ohio  St.  9;  Wright  v.  Kerr,  Add. 
<Pa.)'13;  Vine  v.  Saunders,  5  Scott,  359;  Ball  v.  Bennett,  21  Ind.  427,  83 
Am.  Dec.  356;  Hinds  v.  Jones,  48  Me.  348;  Dailey  v.  Houston,  58  Mo.  361; 
Carleton  v.  Haywood,  49  N.  H.  314;  Jackson  v.  Kirby,  37  Vt.  448;  Brazil 
v.  Moran,  8  Minn.  236  (Gil.  205),  83  Am.  Dec.  772;  Holtz  v.  Dick,  42  Ohio 
St.  23,  51  Am.  Rep.  791;  Heckle  v.  Lurvey,  101  Mass.  344,  3  Am.  Rep.  366. 

11  Jag.  Torts,  217;    Baker  v.  Braslin,  16  R.  I.  635,  18  Atl.  1039,  6  L,  R.  A. 
718. 

12  Martin  v.  Robson,  65  111.  129,  16  Am.  Rep.  578. 
is  Martin  v.  Robson,  65  111.  129,  16  Am.  Rep.  578. 

i*  Baker  v.  Braslin,  16  R.  I.  635,  18  Atl.  1039,  6  L.  R.  A.  718. 

"Head  v.  Briscoe,  5  Car.  &  P.  485;  Ferguson  v.  Neilson,  17  R.  I.  81,  20 
Atl.  229,  9  L.  R.  A.  155,  33  Am.  St.  Rep.  855. 

i«  Cassin  v.  Delany,  38  N.  Y.  178;  Head  v.  Briscoe,  5  Car.  &  P.  484;  Cat- 
terall  v.  Kenyon,  3  Q.  B.  310 ;  Whitmore  v.  Delano,  6  N.  H.  543 ;  Matthews 
v.  Tiestel,  2  E.  D.  Smith  (N.  Y.)  90;  Handy  v.  Foley,  121  Mass.  259,  23 
Am.  Rep.  270;  Brazil  v.  Moran,  8  Minn.  236  (Gil.  205),  83  Am.  Dec.  772; 
Wheeler  &  Wilson  Mfg.  Co.  v.  Heil,  115  Pa.  487,  8  Atl.  616,  2  Am.  St.  Rep.  575 ; 
Smith  v.  Taylor,  11  Ga.  22 ;  Marshall  v.  Oakes,  51  Me.  308 ;  Heckle  v.  Lur- 
•vey,  101  Mass.  344,  3  Am.  Rep.  366. 

IT  Hyde  v.  S.,  12  Mod.  246;    Vine  v.  Saunders,  5  Scott,  359;    Roadcap  v. 


§§  39-42)  TORTS   OP   MARRIED   WOMEN  97 

liable;  and  they  not  only  may,  but  must,  be  sued  jointly.  'At  com- 
mon law  this  liability  is  joint,  and  renders  it  necessary  to  sue  the 
husband  and  wife  jointly.  It  is  not  enough  to  sue  either  the  wife 
or  the  husband  alone.18 

Where,  however,  a  tort  is  committed  by  a  wife  in  the  presence 
of  her  husband,  and  by  his  command  or  coercion,  she  is  not  liable 
at  all.  He  only  is  liable,  and  must  be  sued  alone.19  To  thus  exempt 
a  married  woman  from  liability  for  her  tortious  acts,  two  things 
must  concur:  she  must  have  been  in  her  husband's  presence,  ac- 
tually or  constructively;  and  she  must  have  acted  by  his  express 
or  implied  command.  An  act  by  his  command,  but  not  in  his  pres- 
ence, renders  her  liable,  and  so  it  is  if  she  does  an  act  in  his  pres- 
ence, but  of  her  own  volition,  and  not  by  his  command.20 

If  it  is  shown  that  the  tort  was  committed  by  the  wife  in  her 
husband's  presence,  and  nothing  further  appears,  the  presumption 
of  law  is  that  she  acted  under  coercion  by  him,  so  as  not  to  be 
liable  herself.21  But  the  presumption  is  prima  facie  only,  and  may 
always  be  rebutted,  so  as  to  render  her  liable  by  showing  that  she 
acted  of  her  own  free  will,  and  not  by  her  husband's  direction; 

Sipe,  6  Grat.  (Va.)  213 ;  Cassin  v.  Delany,  38  N.  Y.  178 ;  Marshall  v.  Oakes, 
51  Me.  308;  Carleton  v.  Haywood,  49  N.  H.  314;  Brazil  v.  Moran,  8  Minn. 
236  (Gil.  205),  83  Am.  Dec.  772;  Simmons  v.  Brown,  5  R.  I.  299,  73  Am. 
Dec.  66;  Henderson  v.  Wendler,  39  S.  C.  555,  17  S.  E.  851. 

isEversley,  Dom.  Rel.  295;  Mitchinson  v.  Hewson,  7  Term  R.  348;  Mar- 
shall v.  Oakes,  51  Me.  308.  "For  any  wrong  committed  by  her,  she  is  liable, 
and  her  husband  cannot  be  sued  without  her.  Neither  can  she  be  sued 
without  her  husband."  Per  Erie,  C.  J.,  in  Capel  v.  Powell,  34  Law  J.  C. 
P.  168,  17  C.  B.  (N.  S.)  743.  And  see  the  cases  in  the  two  preceding  notes. 

i»  Cassin  v.  Delany,  38  N.  Y.  178 ;  Kosminsky  v.  Goldberg,  44  Ark.  401 ; 
Brazil  v.  Moran,  8  Minn.  236  (Gil.  205),  83  Am.  Dec.  772;  Johnson  v.  Mc- 
Keown,  1  McCord  (S.  C.)  578,  10  Am.  Dec.  698 ;  Ball  v.  Bennett,  21  Ind.  427, 
83  Am.  Dec.  356 ;  Dohorty  v.  Madgett,  58  Vt.  323,  2  Atl.  115 ;  Flesh  v.  Lindsay, 
115  Mo.  1,  21  S.  W.  907,  37  Am.  St.  Rep.  374 ;  Dailey  v.  Houston,  58  Mo,  361. 

20  "The  authorities  are  clear  that,  when  a  tort  or  felony  of  any  inferior 
degree  is  committed  by  the  wife  in  the  presence  and  by  the  direction  of  her 
husband,  she  is  not  personally  liable.    To  exempt  her  from  liability,  both  of 
these  concurrent  circumstances  must  exist,  to  wit,  the  presence  and  the  com- 
mand of  the  husband.    An  offense  by  his  direction,  but  not  in  his  presence, 
does  not  exempt  her  from  liability;    nor  does  his  presence,  if  unaccompanied 
by  his  direction."     Cassin  v.  Delany,  38  N.  Y.  178. 

21  Cooley,  Torts,  115;   Emmons  v.  Stevane,  73  N.  J.  Law,  349,  64  Atl.  1014; 
Kosminsky  v.  Goldberg,  44  Ark.  401 ;   Marshall  v.  Oakes,  51  Me.  308 ;    Brazil 
v.  Moran,  8  Minn.  236  (Gil.  205),  83  Am.  Dec.  772 ;    Carleton  v.  Haywood,  49 
N.  H.  314 ;   Seller  v.  People,  77  N.  Y.  411 ;   Hildreth  v.  Camp,  41  N.  J.  Law, 
306. 

TIFF.P.&  D.REL.(3o  ED.)— 7 


98  RIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  (Ch.  2 

and,  of  course,  this  may,  and  generally  must,  be  shown  by  the  cir- 
cumstances surrounding  the  commission  of  the  act.22  "His  pres- 
ence furnishes  evidence  and  affords  a  presumption  of  his  direction, 
but  it  is  not  conclusive,  and  the  truth  may  be  established  by  compe- 
tent evidence."  ai 

In  order  that  an  act  may  be  said  to  have  been  committed  by  the 
wife  in  her  husband's  presence,  it  is  not  necessary  that  it  shall  have 
been  done  in  his  sight.  It  is  sufficient  if  she  was  near  enough  to  be 
under  his  immediate  influence  and  control.  No  exact  rule,  appli- 
cable to  all  cases,  can  be  laid  down  as  to  what  degree  of  proximity 
will  constitute  such  presence,  because  this  may  vary  with  the  vary- 
ing, circumstances  of  each  case.24  The  question  has  already  been 
considered,  in  treating  the  crimes  of  married  women." 

The  liability  of  a  husband  for  his  wife's  torts,  not  in  an)'  way  par- 
ticipated in  by  him,  whether  committed  before  or  after  marriage, 
is  not  based  on  any  idea  that  the  husband  is  a  tort-feasor;  but  one 
of  the  chief  reasons  of  it  is  because  the  wife  cannot,  at  common 
law,  be  sued  alone.  It  follows,  in  so  far  as  this  reason  is  concerned, 
that  the  husband's  liability  continues  only  during  coverture.  And  it 
is  held  that  if  not  reduced  to  judgment  before  her  death,  or  a  di- 
vorce, the  cause  of  action  ceases,  as  against  him.2*  On  his  death 
she  is  solely  liable,  and,  as  there  is  nothing  to  prevent  her  being 
sued  alone,  the  cause  of  action  survives  against  her.27  Of  course, 
if  it  is  shown  that  the  husband  actually  commanded  his  wife  to  com- 
as Marshall  v.  Oakes,  51  Me.  308;  Brazil  v.  Moran,  8  Minn.  236  (Gil.  205), 
83  Am.  Dec.  772;  Roadcap  v.  Slpe,  6  Grat.  (Va.)  213;  Simmons  v.  Brown, 

5  R,  I.  299,  73  Am.  Dec.  66;    Griffin  v.  Reynolds,  17  How.  609,  15  L.  Ed. 
229 ;   Carleton  v.  Hay  wood,  49  N.  H.  314 ;   Handy  v.  Foley,  121  Mass.  259,  23 
Am.  Rep.  270 ;    Miller  v.  Sweitzer,  22  Mich.  391 ;   Cassin  v.  Delany,  38  N.  Y. 
178;    Heckle  v.  Lurvey,  101  Mass.  344,  3  Am.  Rep.  366;    McElfresh  v.  Klr- 
kendall,  36  Iowa,  224 ;  Fowler  v.  Chlchester,  26  Ohio  St.  9 ;   Estill  v.  Fort,  2 
Dana  (Ky.)  237;    Henderson  v.  Wendler,  39  S.  O.  555,  17  S.  E.  851. 

2»  Cassin  v.  Delany,  38  N.  Y.  178. 

24  Com.  v.  Munsey,  112  Mass.  287. 

2«  Ante,  p.  90,     and  cases  there  cited. 

2«Cooley,  Torts,  115;  Jag.  Torts,  217;  Wright  v.  Leonard,  11  C.  B.  (N. 
S.)  258,  266;  Reeve,  Dom.  Rel.  100;  Phillips  v.  Richardson,  4  J.  J.  Marsh. 
(Ky.)  212 ;  Ferguson  v.  Collins,  8  Ark.  241 ;  Capel  v.  Powell,  17  C.  B.  (N.  S.) 
743;  Kowing  v.  Manly,  49  N.  Y.  192,  10  Am.  Rep.  346.  But  see  Johnson 
v.  McKeown,  1  McCord  (S.  G.)  578,  10  Am.  Dec.  698;  Cassin  v.  Delany,  38 
N.  Y.  178. 
.  27  Rigiey  v.  Lee,  Cro.  Jac.  356;  Baker  v.  Braslin,  16  R.  I.  635,  18  Atl.  1039, 

6  L.  R.  A.  718 ;  Appeal  of  Franklin's  Adm'r,  115  Pa.  534,  6  Atl.  70,  2  Am.  St. 
Rep.  583. 


§§  39-42)  TORTS   OF   MARRIED   WOMEN  99 

mit  the  tort,  or  otherwise  actually  participated  in  its  commission,  - 
he  is  liable  as  an  actual  tort-feasor,  and  not  merely  because  he  is 
her  husband.28  It  follows  that  he  could  be  sued  therefor  after  her 
death;  the  action  being  for  his  own  tort,  and  not  for  hers.  Fur- 
ther than  this,  if  a  husband  authorizes  his  wife  to  act  for  him  as 
agent,  he  will  be  liable  for  her  acts  as  agent.29 

Torts  Connected  with  Contracts 

At  common  law,  since  a  married  woman  was  incapable  of  bind- 
ing herself  by  contract,  she  could  not  be  held  liable  for  a  tort  when 
this  would  have  the  effect  of  indirectly  making  her  liable  on  con- 
tract. For  instance,  it  has  been  held  that  an  action  cannot  be  main- 
tained at  common  law  against  a  husband  and  wife  for  her  false 
and  fraudulent  representation  that  she  was  a  widow  at  the  time  she 
executed  a  bond  and  mortgage.30  In  Fairhurst  v.  Liverpool  Adel- 
phi  Association,81  where  it  was  held  that  a  husband  and  wife  could 
not  be  sued  in  tort  for  a  false  and  fraudulent  representation  by  the 
wife  that  she  was  sole  at  the  time  of  signing  a  note,  Pollock,  C.  B., 
said :  "A  feme  covert  is  unquestionably  incapable  of  binding  herself 
by  a  contract.  It  is  altogether  void,  and  no  action  will  lie  against 
her  husband  or  herself  for  the  breach  of  it.  But  she  is  undoubtedly 
responsible  for  all  torts  committed  by  her  during  coverture,  and  the 
husband  must  be  joined  as  a  defendant.  They  are  liable,  therefore, 
for  frauds  committed  by  her  on  any  person,  as  for  any  other  person- 
al wrongs.  But  when  the  fraud  is  directly  connected  with  the  con- 
tract with  the  wife,  and  is  the  means  of  effecting  it,  and  parcel  of 
the  same  transaction,  the  wife  cannot  be  held  responsible,  and  the 
husband  be  sued  for  it  together  with  the  wife.32  On  the  same  prin- 
ciple it  has  been  held  that  a  married  woman,  even  though  living 

as  See  Handy  v.  Foley,  121  Mass.  259,  23  Am.  Rep.  270;  Mesh  v.  Lind- 
say, 115  Mo.  1,  21  S.  W.  907,  37  Am.  St.  Rep.  374. 

2 »  Taylor  v.  Green,  8  Car.  &  P.  316. 

so  Keen  y.  Coleman,  39  Pa.  299,  80  Am.  Dec.  524. 

si  9  Exch.  422,  23  Law  J.  Exch.  163. 

82  And  see  Wright  v.  Leonard,  11  C.  B.  (N.  S.)  258 ;  Cooper  v.  Witham,  1 
Lev.  247;  Woodward  v.  Barnes,  46  Vt.  332,  14  Am.  Rep.  626;  Trust  Co.  v. 
Sedgwick,  97  U.  S.  304,  24  L.  Ed.  954 ;  Kowing  v.  Manly,  49  N.  T.  192,  10  Am. 
Rep.  346 ;  Ferguson  v.  Neilson,  17  R.  I.  81,  20  Atl.  229,  9  L.  R.  A.  155,  33  Am. 
St.  Rep.  855 ;  Keen  v.  Hartman,  48  Pa.  497,  86  Am.  Dec.  606,  88  Am.  Dec.  472 ; 
Owens  v.  Snodgrass,  6  Dana  (Ky.)  229;  Curd  v.  Dodds,  6  Bush  (Ky.)  681. 
For  the  same  principle  as  applied  to  infants,  see  Jennings  v.  Rundall,  8 
Term  R.  335 ;  Clark,  Cont.  260 ;  post,  p.  525. 


100  RIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  (Ch,  2 

apart  from  Her  husband,  and  maintaining  a  separate  establishment 
with  her  own  means,  is  not  liable  for  the  tort  of  a  servant  hired 
by  her;  for,  as  she  is  incapable  of  contracting,  she  cannot  occupy 
the  position  of  a  master  or  principal,  and  the  rule  respondeat  su- 
perior therefore  cannot  apply.38  "The  general  principle  that,  for 
the  torts  or  frauds  of  the  wife,  an  action  may  be  sustained  against 
her  and  her  husband,  applies  only  to  torts  simpliciter,  or  cases 
of  pure,  simple  tort,  and  not  where  the  substantive  basis  of  the  tort 
is  the  contract  of  the  wife."  84 

This  rule  has  been  rendered  inapplicable  to  some  extent  by  the 
statutes  giving  married  women  a  power  to  contract.85 

Effect  of  Modern  Statutes 

The  common-law  disabilities  of  a  married  woman,  and  the  liability 
of  her  husband  for  her  torts,  remain  at  this  time,  both  in  England 
and  in  this  country,  except  in  so  far  as  they  have  been  modified  by 
statute.  Modern  statutes  have  been  enacted,  both  in  England  and 
in  this  country,  removing,  to  a  greater  or  less  extent,  the  disabilities 
of  married  women ;  taking  away  from  the  husband  rights  which  he 
had  at  common  law,  and  either  expressly  or  by  implication  reliev- 
ing him  from  liabilities  imposed  upon  him  by  the  common  law  by 
reason  of  the  marriage.  Even  if  these  statutes  do  not  expressly 
refer  to  the  husband's  liability  for  the  torts  of  his  wife,  it  is  very  ob- 
vious that  they  must  modify  it  to  some  extent.  If  the  liability  is 
based  on  the  right  of  the  husband  to  control  the  conduct  of  his  wife, 
then  to  take  away  this  right  would  seem  clearly  to  take  away  the 
liability,  of  the  principle,  "Cessante  ratione,  cessat  ipsa  lex."  If  the 
liability  is  based  on  the  fact  that  the  wife  cannot  be  sued  without 
joining  her  husband,  it  would  seem  to  cease  when,  by  statute,  a  mar- 
ried woman  is  allowed  to  sue  and  be  sued  as  a  feme  sole.  If  the  lia- 
bility is  based  on  the  husband's  rights  in  the  property  of  his  wife, 


as  Ferguson  v.  Neilson,  17  R.  I.  81,  20  Atl.  229,  9  L.  R.  A.  155,  33  Am.  St. 
Rep.  855.  But  see  Schmidt  v.  Keehn,  57  Hun,  585,  10  N.  Y.  Supp.  267,  where 
a  married  woman  was  held  liable  for  the  negligence  of  her  agent  in  making 
improvements  on  her  separate  property,  and  Flesh  v.  Lindsay,  115  Mo.  1,  21  S. 
W.  907,  37  Am.  St.  Rep.  374,  where  a  distinction  is  drawn  between  the  terms 
"agent"  and  "servant,"  and  it  is  said  that,  though  a  married  woman  may  not 
have  an  agent,  in  regard  to  her  fee-simple  property,  she  may  have  a  servant, 
and  be  liable  for  his  acts  in  relation  to  the  property. 

a*  Woodward  v.  Barnes,  46  Vt.  332,  14  Am.  Rep.  626. 

35  See  Dobbin  v.  Cordiner,  41  Minn.  165,  42  N.  W.  870,  4  L.  R.  A.  333,  16 
Am.  St.  Rep.  6S3. 


§§  39-42)  TORTS  OF  MARRIED  WOMEN  10 J 

then  the  liability  ought  not  to  exist  when  these  rights  are  taken 
away  from  him.    This  is  only  reasonable  and  just.'6 

The  statutes  commonly  known  as  the  "Married  Women's  Acts" 
vary  so  much  in  the  different  states,  and  the  judges  have  differed  so 
widely  in  their  opinions  as  to  their  effect,  that  no  universal  state- 
ment as  to  a  husband's  liability  for  his  wife's  torts  can  be  made. 
The  reader  must  consult  the  statutes  and  decisions  of  his  state.  In 
many  of  the  states  the  courts  have  been  very  conservative — per- 
haps too  much  so — in  adopting  innovations  in  the  common-law  doc- 
trine. They  require  that  the  intention  of  the  Legislature  to  make 
such  changes  must  be  clearly  and  unambiguously  expressed.  Even 
where,  by  statute,  a  wife's  separate  estate  is  liable  for  her  torts,  it 
has  been  held  that  her  husband's  joint  liability  for  her  personal  torts 
still  remains.  In  New  York  and  a  number  of  other  states,  for  in- 
stance, a  husband  is  still  liable  as  at  common  law  for  slanderous 
words  spoken  by  his  wife,  though  spoken  in  his  absence,  and  though 
he  in  no  manner  participated  therein ;  and  the  same  is  true  of  as- 
sault and  battery,  or  any  other  personal  tort.87  The  decision  in  all 
of  these  cases  proceeds  upon  the  ground  that  statutes  changing  the 
common  law  are  to  be  strictly  construed,  and  the  latter  will  be  held 
to  be  no  further  abrogated  than  the  clear  import  of  the  language 
used  in  the  statutes  absolutely  requires,  and  hence  that  the  com- 
mon-law disabilities  and  liabilities  incident  to  the  relation  of  hus- 


s  e  Martin  v.  Robson,  65  111.  129,  16  Am.  Rep  578.  See,  also,  Schuler  v. 
Henry,  42  Colo.  367,  94  Pac.  360,  14  L.  R.  A.  (N.  S.)  1009,  where  it  was  said 
that  a  statute  which  vests, a  married  woman  with  the  absolute  dominion  over 
her  property  and  person,  and  which  authorizes  her  to  sue  and  be  sned  as  if 
sole,  etc.,  impliedly  repeals  the  rule  of  the  common  law  which  makes  a  hus- 
band liable  for  the  torts  of  his  wife  committed  during  coverture,  without  his 
presence,  and  in  which  he  in  no  manner  participated.  In  view  of  emanci- 
pation of  married  women  by  Rev.  St.  1909,  §§  8304-8309,  indicating  absence 
of  reason  for  old  rule  relating  to  husband's  common-law  liability  for  his 
wife's  torts,  rule  is  no  longer  recognized.  Claxton  v.  Pool,  197  S.  W.  349, 
L.  R.  A.  1918A,  512,  affirming  judgment  182  Mo.  App.  13,  167  S.  W.  623. 

37  Rowing  v.  Manley,  57  Barb.  (N.  Y.)  479;  Baum  v.  Mullen,  47  N.  Y.  577; 
Mangam  v.  Peck,  111  N.  Y.  401,  18  N.  E.  617;  Fitzgerald  v.  Quann,  33  Hun, 
652 ;  Id.,  109  N.  Y.  441,  17  N.  E.  354 ;  Jackson  v.  Williams,  92  Ark.  486,  123 
S.  W.  751,  25  L.  R.  A.  (N.  S.)  840;  Kellar  v.  James,  63  W.  Va.  139,  59  S. 
E.  939,  14  L.  R.  A.  (N.  S.)  1003,  Cooley  Gas..  Persons  and  Domestic  Relations, 
46 ;  Choen  v.  Porter,  66  Ind.  195 ; '  Fowler  v.  Chichester,  26  Ohio  St.  9 ;  Fer- 
guson v.  Brooks,  67  Me.  251;  McQueen  v.  Fulgham,  27  Tex.  463;  Luse  v- 
Oaks,  36  Iowa,  562 ;  McElfresh  v.  Kirkendall,  Id.  224 ;  Quick  v.  Miller,  103 
Pa.  67.  See,  also,  Kellar  v.  James,  63  W.  Va.  139,  59  S.  E.  939,  14  L.  R. 
A.  (N.  S.)  1003. 


102  RIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  (Ch.  2 

band  and  wife  still  exist,  except  in  so  far  as  they  have  been  swept 
away  by  express  enactments.38 

In  other  states  it  is  held  that  the  statutes  removing  the  disabil- 
ities of  a  married  woman  to  sue  and  to  be  sued,  and  taking  from 
the  husband  his  common-law  rights  in  her  property,  and  to  her 
earnings,  impliedly  remove  his  common-law  liability  for  her  torts 
committed  in  his  absence  and  without  his  participation,  even  though 
the  tort  has  no  connection  with  the  management  and  control  of  her 
separate  property.  It  is  held,  for  instance,  that  he  is  not  liable  for 
slanderous  words  spoken  by  her  in  his  absence,  and  without  his  par-. 
ticipation.89  In  Illinois  the  statutes  give  a  married  woman  the  sole 
control  of  her  separate  property  and  estate  acquired  in  good  faith 
from  any  person  other  than  her  husband,  and  the  right  to  her  own 
earnings ;  and  it  has  been  held  in  that  state  that  the  effect  of  these 
statutes  is  to  remove  the  husband's  liability  for  the  torts  of  his  wife, 
if  he  is  not  present  when  they  are  committed,  and  in  no  manner  par- 
ticipates in  them.  The  court  said  that  so  long  as  the  husband  was 
entitled  to  the  property  of  the  wife  and  to  her  industry,  so  long 
as  he  had  the  power  to  direct  and  control  her,  and  thus  prevent  her 
from  the  commission  of  torts,  there  was  some  reason  for  the  rule, 
but,  as  the  reason  had  been  removed,  so  also  should  the  rule.  A 
"liability,"  it  was  said,  "which  has  for  its  consideration  rights  con- 
ferred, should  no  longer  exist,  when  the  consideration  has  failed. 
If  the  relations  of  husband  and  wife  have  been  so  changed  as  to 
deprive  him  of  all  right  to  her  property  and  to  the  control  of 
her  person  and  her  time,  every  principle  of  right  would  be  violated, 
to  hold  him  still  responsible  for  her  conduct.  If  she  is  emancipat- 
ed, he  should  no  longer  be  enslaved."  *°  To  the  same  effect  are  the 

as  Common-law  rule  as  to  husband's  civil  liability  for  torts  of  his  wife  in 
action  where  they  are  joined  and  charged  with  conspiring  to  commit  a  wrong 
is  not  changed  by  Rev.  St.  1909,  §  8304,  authorizing  a  married  woman  to  sue 
and  be  sued  without  joining  her  husband.  Aronson  v.  Ricker,  185  Mo.  App. 
528,  172  S.  W.  641. 

a  9  Martin  v.  Robson,  65  111.  129,  16  Am.  Rep.  578;  Hinski  v.  Stein,  68  Pa. 
Super.  Ct.  441. 

40  Martin  v.  Robson,  supra  Under  the  express  provisions  of  Hurd's  Rev. 
St.  1915-16,  c.  68,  §  4  (Jones  &  A.  Ann.  St.  1913,  par.  6141),  the  husband  is 
not  responsible  for  the  wife's  torts  except  where  he  would  be  jointly  re- 
sponsible with  her  if  the  marriage  did  not  exist.  Christensen  v.  Johnston, 
207  111.  App.  209.  But  the  husband  will  be  liable  if  under  similar  circum- 
stances he  would  be  liable  for  the  tort  of  another,  as,  for  instance,  on  the 
theory  of  respondeat  superior.  Thus  in  McNemar  v.  Cohn,  115  111.  App.  31, 
it  was  held  that  the  husband  was  liable  where  the  wife,  acting  as  his  agent, 


§§  39-42)  TORTS   OF  MARRIED  WOMEN  103 

decisions  in  some  of  the  other  states.  These  decisions  all  proceed 
on  the  principle  of  the  common  law,  "Cessante  ratidne,  cessat  ipsa 
lex."  41 

Even  in  those  states  where,  as  in  New  York,  a  husband  is  still 
held  liable  as  at  common  law  for  the  personal  torts  of  his  wife,  like 
slander,  assault  and  battery,  etc.,  it  is  very  generally  held  that  his 
liability  is  limited  to  torts  of  this  character,  and  does  not  extend  to 
torts  committed  by  his  wife  in  the  management  and  control  of  her 
separate  property,  as  where  she  permits  a  nuisance  on  her  land,42 
suffers  her  cattle  to  stray  on  her  neighbor's  land,48  commits  a  fraud 
in  the  sale  of  her  separate  property,44  or  is  guilty  of  any  other  tor- 
tious  act  or  omission  in  relation  to  her  separate  property.45  If 
the  wife  is  by  statute  capable  of  managing  and  controlling  her  sepa- 

was  negligent  in  the  performance  of  her  duties,  to  the  injury  of  a  third  per- 
son. Under  doctrine  of  respondeat  superior,  a  husband  is  liable  for  negli- 
gent operation  of  an  automobile  owned  by  him  and  driven  by  his  wife  with 
his  acquiescence  and  consent  for  business  or  pleasure  of  family.  Vannett 
v.  Cole  (N.  D.)  170  N.  W.  663.  But  see  Killingsworth  v.  Keen,  89  Wash. 
597,  154  Pac.  1096,  holding  that  under  Rem.  &  Bal.  Code,  §  5929,  negativing 
liability  of  a  husband  for  his  wife's  torts,  a  chauffeur,  whose  wife  took  his 
employer's  car  and  damaged  it,  is  not  liable  for  her  tortious  act.  A  mar- 
ried woman  is  not  liable  for  a  tort  committed  by  her  husband  on  the  theory 
of  respondeat  superior.  Missio  v.  Williams,  129  Tenn.  504-  167  S.  W.  473,  L. 
R.  A.  1915A,  500.  See,  also,  Curtis  v.  Dinneen,  4  Dak.  245,  30  N.  W.  148. 

41  Norris  v.  Corkill,  32  Kan.  409,  4  Pac.  862,  49  Am.  Rep.  489,  Cooley  Cas. 
Persons  and  Domestic  Relations,  44;    Berger  v.  Jacobs,  21  Mich.  215;    Burt 
v.  McBain,  29  Mich.  260 ;   Ricci  v.  Mueller,  41  Mich.  214,  2  N.  W.  23 ;    Schuler 
v.  Henry,  42  Colo.  367,  94  Pac.  360,  14  L.  R.  A.  (N.   S.)   1009;    Gustine  v. 
Westenberger,  224  Pa.  455,  73  Atl.  913;    Fadden  v.  McKinney,  87  Vt.  316, 
89  Atl.  351;    Musselman  v.  Galligher,  32  Iowa,  383;    Pancoast  v.  Burnell, 
Id.  394;    Mewhirter  v.  Hatten,  42  Iowa,  288,  20  Am.  Rep.  618;    Kuklence 
v.  Vocht  (Pa.)  13  Atl.  198;    Vocht  v.  Kuklence,  119  Pa.  365,  13  Atl.  199. 

42  Fiske  v.  Bailey,  51  N.  Y.  150;    Quilty  v.  Battie,  135  N.  Y.  201,  32  N.  B. 
47,  17  L.  R.  A.  521. 

«  Rowe  v.  Smith,  45  N.  Y.  230. 

44  Baum  v.  Mullen,  47  N.  Y.  577. 

45  Ferguson  v.  Brooks,  67  Me.  251;    Leros  r.  Parker,  79  W.  Va.  700,  91 
S.  E.  660;    Hageman  v.  Vanderdoes,  15  Ariz.  312,  138  Pac.  1053,  L.  R.  A. 
1915A,  491,  Ann.  Cas.  1915D,  1197;    Boutell  v.  Shellabarger,  264  Mo.  70,  174 
S.  W.  384,  I*  R.  A.  1915D,  847 ;    Id.,  "264  Mo.  81,  174  S.  W.  387 ;    Harrington 
v.  Jagmetty,  83  N.  J.  Law,  548,  83  Atl.  880.     Keeping  on  her  premises  a 
vicious  dog.    Quilty  v.  Battie,  135  N.  Y.  201,  32  N.  E.  47,  17  L.  R.  A.  521 ; 
Missio  v.    Williams,   129   Tenn.   504,   167   S.    W.   473,   L.   R.   A.    1915A,    500. 
Where  she  is  guilty  of  a  conversion,  in  seizing  property  on  which  she  claims 
a  lien,  the  husband  not  interfering  in  any  way.    Peak  v.  Lemon,  1  Lans.  (N. 
Y.)  295.     But  see  Wheeler  &  Wilson  Mfg.  Co.  y.  Heil,  115  Pa.  487,  8  Atl. 
616,  2  Am.  St.  Rep.  575. 


104  RIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURES  (Ch.  2 

rate  property,  so  as  to  be  thus  liable  for  her  torts  committed  in  re- 
lation thereto^she  may  be  liable  for  the  torts  of  her  husband  in  re- 
lation thereto,  where  he  is  acting  as  her  agent  under  authority 
from  her.4* 

Of  course,  the  husband  is  solely  liable  for  torts  committed  by 
himself  alone  in  relation  to  his  wife's  separate  property,  and  if  he 
participates  with  her  in  the  commission  of  any  tort  he  is  liable  as  a 
joint  tort-feasor.  The  fact,  for  instance,  that  the  property  on  which 
a  man  lives  with  his  wife  belongs  to  her  does  not  render  her  liable 
as  a  keeper  and  harborer  of  his  vicious  dogs,  but  the  liability  is  sole- 
ly on  him.*T 

The  statutes,  as  has  already  been  remarked,  vary  greatly  in  the 
different  states.  In  some  states  they  are  not  nearly  so  broad  as 
in  others,  and  in  many  cases,  therefore-,  apparently  conflicting  deci- 
sions may  be  reconciled.  In  some  states  it  is  expressly  declared 
by  statute  that  a  husband  shall  not  be  liable  for  the  torts  of  his  wife 
unless  he  directed  them,  or  otherwise  participated  therein.4* 

The  married  women's  acts  do  not  change  the  rule  stated  on  a  pre- 
ceding page,  that  a  woman  who  commits  a  tort  in  the  presence  of 
her  husband  is  presumed  to  have  acted  under  his  coercion,  and  is 
not  liable  therefor  unless  it  is  affirmatively  shown  that  she  did  not 
act  under  coercion.  Prima  facie  the  husband  is  solely  liable.4' 

««  Ferguson  r.  Brooks,  67  Me.  251;  Howe  v.  Smith,  45  N.  T.  230;  Baum  v. 
Mullen,  47  N.  Y.  577;  Barber  v.  Keeling  (Tex.  Civ.  App,)  204  S.  W.  139; 
Knappen  v.  Freeman,  47  Minn.  491,  50  N.  W.  :\X>.  A  wife  is  not  liable  for 
negligence  of  husband  in  operating  her  automobile  for  his  own  purposes, 
she  not  being  present.  Brenner  v.  Goldstein,  1S4  App.  Div.  26S,  171  N.  Y. 
Supp.  579. 

«T  Bundschuh  T.  Mayer,  SI  Hun,  111,  30  N.  Y.  Supp.  622.  And  see  Strouse 
v.  Leipf.  101  Ala.  433,  14  South.  667,  23  L.  R.  A.  622,  46  Am.  St.  Rep.  322; 
Mcl.au~hlin  v.  Kemp.  152  Mass,  7.  27>  N.  E.  IS. 

-••»ry  v.  Dowuey,  62  Vt.  243,  20.  AtL  321:  Kuklence  T.  Yocht  (Pa.)  13 
Atl.  19S;  Vocht  v.  Kuklence,  119  Pa.  365,  13  AtL  199:  Strouse  v.  Leipf,  101 
Ala.  4:W.  14  South.  669,  23  I*  R.  A.  622,  46  Am.  St.  Rep.  122;  Austin  v.  Cox. 
11>  Mass.  5& 

*»Ante,  pw  87. 


43)  TORTS  AS  BETWEEN  HUSBAND  AND  WIFE  105 


TORTS  AS  BETWEEN  HUSBAND  AND  WIFE 

43.  At  common  law  neither  spouse  is  liable  to  the  other,  either  dur- 
ing coverture  or  after  divorce,  for  wrongful  acts  committed 
during  coverture;  but — 

(a)  The  husband  in  such  a  case  could  sue  third  persons  who  as- 

sisted his  wife,  but  the  wife  could  not  sue  third  persons 
who  assisted  her  husband. 

(b)  The  rule  has  in  some  states  been  modified  by  statute. 

Since  the  unity  of  husband  and  wife  at  common  law  rendered  it 
impossible  for  the  wife  to  sue  the  husband,  it  necessarily  followed 
that  she  could  not  sue  him  for  a  tort  committed  against  her;  as, 
for  instance,  for  slander,  or  for  an  assault  and  battery.50  He  was 
amenable,  if  at  all,  to  the  eriminal  law  only.  No  cause  of  action 
arose  at  all  in  favor  of  the  wife,  and  it  followed  that  she  could  not 
even  after  a  divorce,  sue  him  for  a  tort  committed  during  coverture. 
In  a  Maine  case  61  it  was  sought  to  sustain  an  action  by  a  wife 
against  her  husband,  after  a  divorce,  for  an  assault  committed  upon 
her  during  coverture,  on  the  ground  that  coverture  merely  suspends 
the  right  of  action,  and  does  not  destroy  it,  but  it  was  held  that 
this  contention  was  unsound.  "The  error  in  the  proposition,"  said 
the  court,  "is  the  supposition  that  a  cause  of  action,  or  a  right  of 
action,  eVer  exists  in  such  a  case.  There  is  not  only  no  civil  remedy, 
but  there  is  no  civil  right,  during  coverture,  to  be  redressed  at  any 
time.  There  is,  therefore,  nothing  to  be  suspended.  Divorce  can- 
not make  that  a  cause  of  action  which  was  not  a  cause  of  action  be- 
fore divorce.  The  legal  character  of  an  act  of  violence  by  husband 
upon  wife,  and  of  the  consequences  that  flow  from  it,  is  fixed  by 
the  condition  of  the  parties  at  the  time  the  act  is  done.  If  there  be 
no  cause  of  action  at  the  time,  there  never  can  be  any."  52 

so  l  Jag.  Torts,  463;  Abbott  v.  Abbott,  67  Me.  304,  24  Am.  Rep.  27;  Phillips 
v.  Barnet,  1  Q.  B.  Div,  4S6 ;  Freethy  v.  Freethy,  42  Barb.  (N.  Y.)  641 ;  Longen- 
dyke  v.  Longendyke,  44  Barb.  (N.  Y.)  366;  Peters  v.  Peters,  42  Iowa,  182; 
Main  v.  Main,  46  111.  App.  106 ;  Libby  v.  Berry,  74  Me.  286,-  43  Am.  Rep.  589 ; 
Nickerson  v.  Nickerson,  65  Te.x.  281 ;  Schultz  v.  Schultz,  89  N.  Y.  644 ;  Ku jek 
v.  Goldman,  9  Misc.  Rep.  34,  29  N.  Y.  Supp.  294 ;  Abbe  v.  Abbe,  22  App  Piv 
483,  48  N.  Y.  Supp.  25. 

si  Abbott  v.  Abbott,  67  Me.  304,  24  Am.  Rep.  27. 

52  See  Strom  v.  Strom,  98  Minn.  427,  107  N.  W.  1047,  6  L.  R.  A.  (N.  S.)  191, 
116'  Am.  St.  Rep.  387.  And  see  Phillips  v.  Barnet,  1  Q.  B.  Div.  436. 


106  RIGHTS  AND  DUTIES   INCIDENT  TO  COVERTURE  (Ch.  2 

Nor  can  a  woman,  either  before  or  after  divorce,  maintain  an 
action  against  persons  who  assisted  her  husband  to  commit  a  tort 
against  her,  like  assault  and  battery,  for  instance,  during  coverture. 
Such  an  action  could  only  be  maintained,  if  at  all,  during  cover- 
ture, in  the  name  of  both  the  husband  and  wife;  and  as  he  could 
not  maintain  it,  no  cause  of  action  arises  in  her  favor.88 

The  same  principle  will  prevent  an  action  by  a  husband,  either 
during  coverture  or  after  divorce,  against  his  wife,  for  her  wrong- 
ful acts  during  coverture.  It  would  not,  however,  prevent  the 
husband  from  suing  third  persons  who  assisted  the  wife,  and  he 
could  bring  such  an  action  during  coverture  as  well  as  after  a  di- 
vorce. 

Effect  of  Modern  Statutes 

In  some  states  it  has  been  held  that  the  statutes  removing  the 
disabilities  of  married  women  have  sex  changed  the  common-law 
rule  as  to  authorize  a  wife  to  maintain  an  action  against  her  hus- 
band for  a  personal  tort; 54  but  in  other  states  it  is  held  that  these 
statutes  do  not  necessarily  give  the  wife  the  right  to  sue  her  hus- 
band for  personal  torts.55  Statutes  giving  a  married  woman  the 

5  3  Abbott  v.  Abbott,  67  Me.  304,  24  Am.  Rep.  27. 

64  Peters  v.  Peters,  158  Cal.  32,  103  Pac.  219,  23  L.  R.  A.  (N.  S.)  699; 
Brown  v.  Brown,  88  Conn.  42,  89  Atl.  889,  52  L.  R,  A.  (N.  S.)  185,  Ann.  Cas. 
1915D,  70 ;  Gilman  v.  Oilman,  78  N.  H.  4,  95  Atl.  657,  L.  R.  A.  1916B,  907 ; 
Fiedler  v.  Fiedler,  42  Okl.  124,  140  Pac.  1022,  52  L.  R.  A.  (N.  S.)  189;  John- 
son v.  Johnson,  201  Ala.  41,  77  South.  335",  6  A.  L.  R.  1031.  Under  Acts 
Ark.  1915,  p.  684,  removing  the  disabilities  of  married  women,  the  represen- 
tatives of  a  married  woman  may  maintain  an  action  against  her  husband 
for  wrongful  death  under  Kirby's  Dig.  §  6289.  Fitzpatrick  v.  Owens,  124 
Ark.  167,  186  S.  W.  832,  187  S.  W.  460,  L.  R.  A.  1917B,  774,  Ann.  Cas.  1918C, 
772. 

OB  Peters  v.  Peters,  42  Iowa,  182;  Rogers  v.  Rogers,  265  Mo.  200,  177  S. 
W.  382;  Thompson  v.  Thompson,  218  U.  S.  611,  31  Sup.  Ct.  Ill,  54  L.  Ed. 
1180,  30  L.  R.  A.  (N.  S.)  1153,  21  Ann.  Cas.  921.  affirming  31  App.  D.  C.  557, 
14  Ann.  Cas.  879 ;  Butterfleld  v.  Butterfield,  195  Mo.  App.  37,  187  S.  W. 
295,  197  S.  W.  374;  Lilliankamp  v.  Rippetoe,  133  Tenn.  57,  179  S.  W.  628,  L. 
R.  A.  1916B,  881,  Ann.  Cas.  1917C,  901;  Wilson  v.  Brown  (Tex.  Civ.  App.) 
154  S.  W.  322.  Rem.  &  Bal.  Code,  §  5926,  which  abolishes  as  to  a  wife  all 
civil  disabilities  not  imposed  or  recognized  as  existing  as  to  the  hus- 
band, negatives  any  intention  to  emancipate  the  wife  to  a  greater  degree 
than  the  husband ;  and,  as  the  husband  had  neither  a  common-law  nor  statu- 
tory right  to  sue  the  wife  for  a  tort  committed  during  coverture,  the  stat- 
ute confers  no  such  right  upon  her.  Schultz  v.  Christopher,  65  Wash.  496, 
118  Pac.  629,  38  L.  R.  A.  (N.  S.)  780.  Under  Code  1904,  §  2286a  (Acts  1899- 
1900,  c.  1139),  a  wife  cannot  sue  her  husband  for  damages  for  assault,  nor 
can  her  personal  representative  sue  the  husband  for  damages  for  her  death. 


§  44)  TORTS   AGAINST   MARRIED   WOMEN  107 

power  to  acquire,  hold,  and  dispose  of  property  free  from  the  con- 
trol of  her  husband  have  been  construed  as  giving  a  married 
woman  a  right  of  action  for  torts  committed  by  her  husband  upon 
her  separate  property,  as  trespass  or  conversion.56  In  some  of  the 
cases,  however,  the  courts  have  denied  this  construction.  It  was 
said  by  the  Pennsylvania  court,  in  reference  to  a  separate  property 
act :  "As  the  only  object  of  the  act  was  to  afford  a  protection  to  the 
estates  of  married  women,  we  may  assume  that  it  was  not  intend- 
ed that  she  should  so  fully  own  her  separate  property  as  to  impair 
the  intimacy  of  the  marriage  relation.  It  was  not  intended  to  de- 
clare that  her  property  should  be  so  separate  that  her  husband  could 
be  guilty  of  larceny  of  it,  or  liable  in  trespass  or  trover  for  break- 
ing a  dish  or  a  chair,  or  using  it  without  her  consent."  5T 

TORTS  AGAINST  MARRIED  WOMEN 

44.  When  a  tort  is  committed  against  a  married  woman,  damages 
may  be  recovered. 

(a)  For  the  injury  to  the  wife — as  for  her  mental  and  physical 

suffering. 

(1)  At  common  law  in  a  joint  action  by  husband  and  wife, 

and  only  in  such  an  action,  and  the  cause  of  action 
abates  on  the  death  of  the  wife. 

(2)  By  statute,  in  most  states,  by  the  wife  suing  alone. 

(b)  For  the  injury  to  the  husband — as  for  the  loss  of  the  wife's 

society  and  services,  and  for  his  disbursements — in  an  ac- 
tion by  the  husband  suing  alone,  at  common  law,  and  in 
such  an  action  only.  By  statute  in  some  states,  such  dam- 
ages can  be  recovered  in  the  joint  action.  This  cause  of 
action  does  not  abate  on  the  wife's  death. 

When  a  tort  is  committed  against  a  married  woman,  two  actions 
may  lie — one  for  the  injury  to  the  wife  and  one  for  the  injury  to  the 

Keister's  Adm'r  v.  Keister's  Ex'rs,  123  Va.  157,  96  S.  E.  315,  1  A.  L.  R.  439. 
Under  Civ.  Code  Ga.  1910,  §§  2993,  2994,  3652,  a  wife  cannot  recover  of  a 
husband,  with  whom  she  is  living  in  lawful  wedlock,  for  a  tort  arising  from 
his  negligent  operation  of  an  automobile  -in  which  they  were  riding  at  time 
of  injury.  Heyman  v.  Heyman,  19  Ga.  App.  634,  92  S.  E.  25. 

se  Mason  v.  Mason,  66  Hun,  386,  21  N.  Y.  Supp.  306;  Ryerson  v.  Ryerson, 
55  Hun,  611,  8  N.  Y.  Supp.  738;  Smith  v.  Smith,  20  R.  I.  556,  40  Atl.  417; 
Eshoni  v.  Eshom,  18  Ariz.  170,  157  Pac.  974. 

&7  Walker  v.  Reamy,  36  Pa.  410. 


108  RIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  (Ch.  2 

husband  by  reason  of  his  loss  of  her  services  and  society,  or  by  rea- 
son of  being  put  to  expense.88 

Injury  to  the  Wife — Joint  Action 

At  common  law,  as  will  presently  be  explained  more  at  length, 
marriage  confers  upon  the  husband  an  absolute  right  to  all  of  his 
wife's  personal  j  roperty  in  possession,  and  to  her  choses  in  action 
if  he  reduces  them  to  possession  during  coverture.69  Claims  of  the 
wife  for  damages  growing  out  of  torts  committed  by  third  persons 
against  her  person  or  character,  such  as  assault  and  battery,  neg- 
ligent personal  injury,  libel,  slander,  etc.,  are  choses  in  action  within 
this  rule.60  At  common  law  an  action  for  such  injuries  must  be 
brought  in  the  name  of  the  husband  and  wife  jointly;  during  cover- 
ture neither  can  sue  alone.61  The  damages  recovered  in  such  an 
action  are  for  the  injury  to  the  wife,  and  not  for  any  injury  to  the 
husband ;  but  they  belong  to  the  husband,  when  recovered.62  For 
this  reason  it  has  been  held  that  he  may  release  or  compromise  the 
claim.  If  the  husband  dies  pending  the  action,  it  does  not  abate, 
but  may  proceed  to  judgment  in  the  name  of  the  wife  alone ;  and, 
if  the  husband  dies  before  commencing  an  action,  the  wife  may 
enforce  the  claim  by  an  action  in  her  own  name.63  On  the  death  of 
the  wife  the  cause  of  action  ceases,  and  the  husband  therefore 
cannot  afterwards  commence  an  action  in  his  own  name,  nor  con- 
tinue with  an  action  which  has  already  been  commenced.64 


88  Chicago  &  M.  Electric  Ry.  Co.  v.  Krempel,  116  111.  App.  253;  Mageau  v. 
Great  Northern  Ry.  Co.,  103  Minn.  290,  115  N.  W.  651,  946,  15  L.  R.  A.  (N.  S.) 
511,  14  Ann.  Cas.  551;  Duffee  v.  Boston  Elevated  Ry.  Co.,  191  Mass.  563, 
77  N.  E.  1036;  Thompson  v.  Metropolitan  St.  Ry.  Co.,  135  Mo.  217,  36  S. 
W.  625. 

c»  Post,  pp.  128,  131. 

oo Anderson  v.  Anderson,  11  Bush  (Ky.)  327. 

«i  Cooley,  Torts,  227;  Dengate  v.  Gardiner,  4  Mees.  &  W.  6;  Berger  v. 
Jacobs,  21  Mich.  215;  Michigan  Cent.  R.  Co.  v.  Colemau,  28  Mich.  441; 
Laughlin  v.  Eaton,  54  Me.  156;  Hooper  v.  Haskell,  56  Me.  251;  Saltmarsh 
v.  Candia,  51  N.  H.  71;  Harper  v.  Pinkston,  112  N.  C.  293,  17  S.  E.  161; 
Rogers  v.  Smith,  17  Ind.  323,  79  Am.  Dec.  4S3 ;  Smith  v.  City  of  St.  Joseph, 
55  Mo.  456,  17  Am.  Rep.  660;  King  v.  Thompson,  87  Pa.  365,  30  Am.  Rep. 
364.  Refusal  of  the  husband  to  bring  the  action  does  not  entitle  the  wife  to 
sue  alone.  Rice  v.  Railroad  Co.,  8  Tex.  Civ.  App.  130,  27  S.  W.  921. 

ez  Dengate  v.  Gardiner,  4  Mees.  &  W.  6;  Meese  v.  City  of  Fond  du  Lac, 
48  Wis.  323,  4  N.  W.  406. 

as  Newton  v.  Hatter,  2  Ld.  Raym.  1208;   Schouler,  Dom.  Rel.  §  77. 

««  Bac.  Abr.,  "Baron  and  Feme,"  k,  60;  Meese  v.  City  of  Fond  du  Lac,  48 
Wis.  323,  4  N.  W.  406;  Purple  v.  Railroad  Co.,  11  N.  Y.  Super.  Ct.  74;  Hodg- 


§  44)  TORTS  AGAINST  MARRIED   WOMEN  109 

The  recovery  in  the  joint  action  is  confined  to  damages  for  the  in- 
jury to  the  wife,  such  as  her  mental  and  physical  suffering;  and 
damages  to  the  husband,  as  the  expenses  of  medical  attendance, 
loss  of  wages,  services,  etc.,  in  the  case  of  personal  injuries  to 
the  wife,  must  be  recovered  by  the  husband  suing  alone.05 

Under  Modern  Statutes 

In  most  states  the  common-law  rules  with  regard  to  actions  for 
torts  against  married  women  have  been  modified  by  statute ;  and  it 
is  very  generally  provided  that  a  married  woman  may  sue  alone  for 
injuries  to  her  person  or  character,  and  recover  her  damages  for 
her  own  benefit.66  Such  statutes  are  not  retroactive,  so  as  to  af- 

man  v.  Railroad  Corp.,  7  How.  Prat.  (N.  Y.)  492 ;   Butler  v.  Railroad  Co.,  22 
Barb.  (N.  Y.)  110 ;   Meech  v.  Stoner,  19  N.  Y.  26. 

65  Dengate  v.  Gardiner,  4  Mees.  &  W.  6;   Meese  v.  City  of  Fond  du  Lac,  48 
Wis.  323,  4  N.  W.  406.     But  by  statute  in  some  states  all  damages  may  be 
recovered  in  the  one  action.     See  post,  p.  112. 

66  Stevenson  v.  Morris,  37  Ohio  St.  10,  41  Am.  Rep.  481;   Hey  v.  Prime,  197 
Mass.  474,  84  N.  E.  141,  17  L.  R.  A.  (N.  S.)  570;   McGovern  v.  Interurban  Ry. 
Co.,  136  Iowa,  13,  111  N.  W.  412,  13  L.  R.  A.  (N.,  S.)  476,  125  Am.  St.  Rep. 
215 ;   Engle  v.  Simmons,  148  Ala.  92,  41  South.  1023,  7  L.  R.  A.  (N.  S.)  96,  121 
Am.  St.  Rep.  59,  12  Ann.  Cas.  740;    Times-Democrat  Pub.  Co.  v.  Mozee,  136 
Fed.  761,  69  C.  C.  A.  418;    W<irez  v.  Des  Moines  City  Ry.  Co.,  175  Iowa,  1, 
156   N.   W.   867;     Matthew   v.   Railroad   Co.,   63   Cal.   450;    Michigan   Cent. 
R.  Co.  v.  Coleman,  28  Mich.  440 ;   City  of  Bloomington  v.  Annett,  16  111.  App. 
199;    Chicago,  B.  &  Q.  R.  Co.  v.  Dunn,  52  111.  260,  4  Am.  Rep.  600;    Hen- 
nies  v.  Vogel,  66  111.  401;    Pavlovski  v.  Thornton,  89  Ga.  829,  15  S.  E.  822; 
Fife  v.  City  of  Oshkosh,  89  Wis.  540,  62  N.  W.  541 ;  City  of  Chadron  v.  Glover, 
43  Neb.  732,  62  N.  W.  62;    Barnett  v.  Leonard,  66  Ind.  422;    Sims  v.  Sims, 
79  N.  J.  Law,  577,  76  Atl.  1063,  29  L.  R.  A.  (N.  S.)  842,  Cboley  Cas.  Persons 
and  Domestic  Relations;    Little  Rock  Gas  &  Fuel  Co.  v.  Coppedge,  116  Ark. 
334,  172  S.  W.  885;    Engle  v.  Simmons,  148  Ala.  92,  41   South.  1023,  7  L. 
R.  A.  (N.  S.)  96,  121  Am.  St.  Rep.  59,  12  Ann.  Cas.  746;    McGovern  v.  Inter- 
Urban  Ry.  Co.,  136  Iowa,  13,  111  N.  W.  412,  13  L.  R.  A.  (N.   S.)   476,  125 
Am.  St.  Rep.  215;    Kovacs  v.  Mayoras,  175  Mich.  582,  141  N.  W.  662;    Cas- 
teel  v.  Brooks,  46  Okl.  189,  148  Pac.  158 ;    Coulter  v.  Hermitage  Cotton  Mills 
(S.  C.)  98  S.  E.  846.    In  some  states  the  wife  must  sue  alone  under  the  statute. 
Michigan  Cent.  R.  Co.  v.  Coleman,  supra ;    Story  v.  Downey,  62  Vt.  243,  20 
Atl.  321 ;    Foot  v.  Card,  58  Conn.  1,  18  Atl.  1027,  6  L.  R.  A.  829,  18  Am.  St. 
Rep.  258;    Bennett  v.  Bennett,  116  N.  Y.  584,  23  N.  E.  17,  6  L.  R.  A.  553. 
In  others  the  statute  does  not  prevent,  but  merely  renders  unnecessary,  the 
joinder  of  the  husband.     East  Tennessee,  V.  &  G.  R.  Co.  v.  Cox,  57  Ga.  252; 
Davis  v.  Public  Service  Corp.,  77  N.  J.  Law,  275,  72  Atl.  82 ;    Id.,  72  Atl.  83 ; 
Warth  v.  Jackson  County  Court,  71  W.  Va.  184,  76  S.  E.  420;    Normile  v. 
Wheeling  Traction  Co.,  57  W.  Va.  132,  49  S.  E.  1030,  68  L.  R.  A.  901.    The 
husband  must  join  in  the  action.     Easier  v.  Sacramento  Gas  &  Electric  Co., 
158  Cal.  514,  111  Pac.  530,  Ann.  Cas.  1912A,  642;    Lindsay  v.  Oregon  Short 
Line  R.  Co.,  13  Idaho,  477,  90  Pac.  9S4,  12  L.  R.  A.  (N.  S.)  184.    The  wife 
may  recover  medical  expenses  paid  or  contracted  for  by  her  in  consequence 


110  RIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  (Ch.  2 

feet  a  right  of  action  which  had  already  vested  in  the  husband  prior 
to  the  passage  thereof.67  In  some  states  the  statutes  only  allow 
her  to  sue  in  her  own  name  in  relation  to  her  separate  property. 
She  can,  under  these  statutes,  sue  for  a  trespass  upon,  or  a  con- 
version of,  her  separate  property;88  but  for  injuries  to  her  person 
or  character  she  can  only  sue  jointly,  as  at  common  law." 

Injury  to  Husband — Action  by  Husband  Alone 

In  addition  to  this  joint  action  for  torts  committed  against  his 
wife,  the  husband  may  sue  alone,  "per  quod  consortium  amisit,"  as 
it  is  expressed,  for  injuries  to  her  which  render  her  less  able  to  per- 
form services.  In  such  an  action  he  can  recover  his  own  damages", 
and  such  damages  only — as,  in  case  of  personal  injuries,  for  the 
loss  of  her  society  and  services,  moneys  necessarily  expended  by 
him  for  care  and  attendance,  and  other  incidental  expenses.70 

of  the  injury,  though  the  husband  is  ordinarily  chargeable  therefor.  Ashbey 
v.  Elsberry  &  N.  H.  Gravel  Road  Co.,  Ill  Mo.  App.  79,  85  S.  W.  957 ;  Indian- 
apolis Traction  &  Terminal  Co.  v.  Kidd,  167  Ind.  402,  79  N.  E.  347,  7  L.  R.  A. 
(N.  S.)  143,  10  Ann.  Cas.  942.  Under  Vernon's  Sayles'  Ann.  Civ.  St.  1914, 
art.  1839,  providing  that  the  husband  may  sue  for  recovery  of  any  separate 
property  of  the  wife,  he  may  sue  for  personal  injuries  to  her,  recovery  there- 
for being,  by  Acts  34th  Leg.  c.  54,  declared  her  separate  property.,  Texar- 
kana  Telephone  Co.  v.  Burge  (Tex.  Civ.  App.)  192  S.  W.  807. 

CT  St.  Louis  Southwestern  Ry.  Co.  v.  Purcell,  135  Fed.  499,  68  C.  C.  A.  211 ; 
Snyder  v.  Jett,  138  Tenn.  211,  197  S.  W.  488.  The  marriage  of  a  woman  after 
receiving  an  injury  in  a  railroad  wreck  does  not  divest  her  of  the  right  to 
recover  damages  for  the  total  or  partial  loss  of  her  earning  capacity.  '  Georgia 
Northern  Ry.  Co.  v.  Sharp,  19  Ga.  App.  503,  91  S.  E.  1045. 

os  Dun  can  v.  Duncan,  6  Cal.  App.  404,  92  Pac.  310;  Bondy  v.  American 
Transfer  Co.,  15  Cal.  App.  746,  115  Pac.  965;  Cox  v.  St.  Louis,  M.  &  S.  E. 
Ry.  Co.,  123  Mo.  App.  356,  100  S.  W.  1096 :  Willis  v.  J.  G.  White  &  Co.,  150  N. 
C.  199,  63  S.  E.  942,  134  Am.  St.  Rep.  906. 

e»Lamb  v.  Harbaugh,  105  Cal.  680,  39  Pac.  56;  Lindsay  v.  Oregon  Short 
Line  R.  Co.,  13  Idaho,  477,  90  Pac.  984,  12  L.  R.  A.  (N.  S.)  184.  But  see  Dun- 
can v.  Duncan,  6  Cal.  App.  404,  92  Pac.  310,  holding  that  a  married  woman 
deserted  by  her  husband  may  sue  alone  to  recover  damages  for  her  personal 
injuries,  although  such  damages  when  recovered  are  community  property. 
And  compare  Schmelzer  v.  Chester  Traction  Co.,  218  Pa.  29,  66  Atl.  1005; 
Saunders  Transfer  Co.  v.  Underwood  (Fla.)  81  South.  105. 

"3  Bl.  Comm.  140;  Moore  v.  Bullock,  Cro.  Jac.  501;  Cooley.  Torts,  226; 
1  Jag.  Torts,  469;  Hyatt  v.  Adams,  16  Mich.  180;  Hey  v.  Prime,  197  Mass. 
474,  84  N.  E.  141,  17  L.  R.  A.  (N.  S.)  570;  Duffee  v.  Boston  Elevated  Ry. 
Co.,  191  Mass.  563,  77  N.  E.  1036;  Birmingham  Southern  Ry.  Co.  v.  Ldntner, 
141  Ala.  420,  38  South.  363,  109  Am.  St.  Rep.  40,  3  Ann.  Cas.  461;  Booth  v. 
Manchester  St.  Ry.,  73  N.  H.  529,  63  Atl.  578;  Lyons  v.  New  York  City 
Ry.  Co.,  49  Misc.  Rep.  517,  97  N.  Y.  Supp.  1033;  Wright  v.  City  of  Omaha, 
78  Neb.  12-1,  110  N.  W.  754;  Berber  v.  Jacobs,  21  Mich.  215;  Mewhirter 
v.  Hatten,  42  Iowa,  288,  20  Am.  Rep.  618;  Matteson  v.  Railroad  Co.,  35 


§  44)  TORTS   AGAINST   MARRIED  WOMEN  111 

The  loss  of  services  is  not  to  be  measured  as  if  she  were  a  mere 
servant ;  but  the  frugality,  industry,  usefulness,  and  attention  of  the 
wife  and  mother  are  elements  to  be  taken  into  consideration.71  So, 
too,  the  damages  that  may  be  recovered  are  not  confined  to  the 
value  of  her  services  in  the  household,  but  may  include  the  value 
of  her  services  rendered  in  her  husband's  business ; Ta  and  if  the  in- 
juries are  permanent  the  damages  may  include  a  fair  compensation 
for  her  future  diminished  capacity.73  He  cannot,  in  such  an  action, 

N.  Y.  487,  91  Am.  Dec.  67;  Hoard  v.  Peck,  56  Barb.  (N.  Y.)  202;  Rogers  v. 
Smith,  17  Ind.  323,  79  Am.  Dec.  483 ;  People's  Home  Telephone  Co.  v.  Cockrum, 
182  Ala.  547,  62  South.  86;  Little  Rock  Gas  &  Fuel  Co.  v.  Coppedge,  116 
Ark.  334,  172  S.  W.  885;  Moody  v.  Southern  Pac.  Co.,  167  Cal.  786,  141  Pac. 
388 ;  Indianapolis  &  M.  Rapid  Transit  Co.  ^v.  Reeder,  51  Ind.  App.  533,  100 
N.  E.  101;  Kimberly  v.  Howland,  143  N.  C.  398,  55  S.  E.  778,  7  L.  R.  A. 
(N.  S.)  545";  Bailey  v.  Long,  172  N.  C.  661,  90  S.  E.  809,  L.  R.  A.  1917B,  708; 
Flintjer  v.  Kansas  City  (Mo.  App.)  204  S.  W.  951;  Morrison  v.  Clark,  196 
Ala.  670,  72  South.  305;  Smith  v.  City  of  St.  Joseph,  55  Mo.  456,  17  Am. 
Rep.  660;  King  v.  Thompson,  87  Pa.  365,  30  Am.  Rep.  364;  Barnes  v. 
Martin,  15  Wis.  240,  82  Am.  Dec.  670.  Thus  an  action  may  be  maintained 

'  by  the  husband  per  quod  consortium  amisit,  under  this  rule,  for  the  fol- 
lowing injuries,  among  others,  against  the  wife:  Assault  and  battery.  Ber- 
ger  v.  Jacobs,  21  Mich.  215.  Sale  to  her  of  a  drug  like  laudanum,  opium, 
or  morphine,  which  the  seller  knows  she  is  in  the  habit  of  using  to  excess. 
Hoard  v.  Peck,  56  Barb.  (N.  Y.)  292.  Malpractice  by  physician  or  surgeon. 
Hyatt  v.  Adams,  16  Mich.  180;  Mewhirter  v.  Hatten,  42  Iowa,  288,  20  Am. 
Rep.  618;  Mowry  v.  Chaney,  43  Iowa,  609.  Negligence  resulting  in  per- 
sonal injuries.  Marteson  v.  Railroad  Co.,  35  N.  Y.  487,  91  Am.  Dec.  67; 
Smith  v.  City  of  St.  Joseph,  55  Mo.  456,  17  Am.  Rep.  660;  Hopkins  v.  Rail- 
road Co.,  36  N.  H.  9,  72  Am.  Dec.  287;  Fuller  v.  Railroad  Co.,  21  Conn. 
557.  Libel  or  slander  of  wife,  where  there  is  a  loss  of  services  or  society 
to  the  husband,  as  where  she  is  prevented  from  obtaining  employment,  the 
wages  of  which  would  go  to  the  husband.  Dengate  v.  Gardiner,  4  Mces. 
&  W.  6.  And  see  Van  Vacter  v.  McKillip,  7  Blackf.  (Ind.)  578.  Malicious 
prosecution.  Rogers  v.  Smith.  17  Ind.  323,  79  Am.  Dec.  483.  The  enabling 
statute  does  not  abridge  husband's  right  of  consortium  of  wife  and  accom- 
panying right  to  sue  for  loss  thereof  through  her  personal  injury  by  negli- 
gence of  another.  Elling  v.  Blake-McFall  Co.,  85  Or.  91,  166  Pac.  57; 
Louisville  &  N.  R.  Co.  v.  Kinman,  182  Ky.  597,  206  S.  W.  880 ;  Guevin  v.  Man- 
chester St.  Ry.,  78  N.  H.  289,  99  Atl.  298,  L.  R.  A.  1917C,  410. 

71  Pennsylvania  R.  Co.  v.  Goodman,  62  Pa.  329.  As  to  the  measure  of  dam- 
ages generally,  see  note,  48  Am.  Dec.  620,  621. 

I  72  Georgia  R.  &  Banking  Co.  v.  Tice,  124  Ga.  459,  52  S.  E.  916,  4  Ann.  Gas. 
$00;  Standen  v.  Pennsylvania  R.  Co.,  214  Pa.  189,  63  Atl.  467,  6  Ann.  Cas. 
408;  Citizens'  St.  Ry.  Co.  v.  Twiname,  121  Ind.  375,  23  N.  E.  159,  7  L.  R. 
A.  352 ;  Blair  v.  Chicago  &  A.  R.  Co.,  89  Mo.  334,  1  S.  W.  367.  But  see  Kirk- 
patrick  v.  Metropolitan  St.  Ry.  Co.',  129  Mo.  App.  524, 107  S.  W.  1025. 

73  Kimfcerley  v.  Howland,  143  N.  C.  398,  55.  S.  E.  778,  7  L.  R.  A.  (N.  S.) 
545;  Kirkpatrick  v.  Metropolitan  St.  Ry.  Co.,  129  Mo.  App.  524,  107  S.  W. 
1025. 


112  RIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  (Ch,  2 

recover  for  the  mental  or  physical  suffering  of  his  wife.7*  Damages 
for  injuries  personal  to  the  wife  must  be  recovered  in  the  joint  ac- 
tion, and  damages  for  injuries  to  the  husband  must  be  recovered 
in  an  action  by  the"  husband  alone.75  In  some  states  this  has  been 
changed  by  statute,  and  all  damages,, whether  to  the  wife  or  to  the 
husband,  may  be  recovered  in  a  joint  action.78  The  death  of  the 
wife  either  before  or  during  an  action  by  the  husband  for  his  dam- 
ages for  loss  of  services,  expenses,  etc.,  will  not  defeat  the  action. 
In  case  of  injuries  resulting  in  his  wife's  death,  the  husband  can- 
not recover  at  common  law  for  the  loss  of  society  or  services  result- 
ing from  her  death,  but  only  for  the  loss  between  the  injuries  and 
her  death.77  Under  the  statutes,  however,  giving  a  right  of  action, 
where  a  death  is  caused  by  the  wrongful  act  of  another,  the  hus- 
band, when  a  beneficiary  under  the  statute,  may  recover  for  the  loss 
of  services  resulting  from  his  wife's  death.78 

Personal  Injuries  to  Httsband — No  Right  of  Action  in  Wife 

In  the  case  of  personal  injuries  to  the  husband  it  is  the  almost 
universal  rule  that  the  wife  has  no  right  of  action  against  the  per- 
son causing  the  injury  for  loss  or  damages  she  may  have  sustained 
because  of  the  impairment  of  his  earning  capacity  or  loss  of  con- 
sortium.79 

7*  Hooper  v.  Haskell,  56  Me.  251;  Hyatt  v.  Adams,  16  Mich.  180;  Chicago 
&  M.  Electric  Ry.  Co.  v.  Krempel,  116  111.  App.  253. 

73  See  the  cases  cited  above.  And  see,  particularly,  Dengate  v.  Gardiner,  4 
Mees.  &  W.  6 ;  Fuller  v.  Naugatuck  R.  Co.,  21  Conn.  557 ;  Barnes  v.  Martin, 
15  Wis.  240,  82  Am.  Dec.  670;  Kavanaugh  v.  City  of  Janesville,  24  Wis.  618; 
King  v.  Thompson,  87  Pa.  365,  30  Am.  Rep.  364. 

TO  Meese  v.  City  of  Fond  du  Lac,  48  Wis.  323,  4  N.  W.  406;  Standen  v. 
Pennsylvania  R.  Co.,  214  Pa.  189,  63  Atl.  467,  6  Ann.  Cas.  408.  By  ex- 
press provision  of  Code  Civ.  Proc.  §  427,  subd.  8,  the  husband  and  wife  may 
incorporate  Jn  one  cause  of  action  a  statement  of  the  damages  sustained  by 
the  wife  on  account  of  personal  injuries,  and  a  statement  of  the  consequential 
damages  suffered  by  the  husband.  Meek  v.  Pacific  Electric  Ry.  Co.,  175 
Cal.  53,  164  Pac.  1117. 

TT  Baker  v.  Bolton,  1  Camp.  493;  Green  v.  Railroad  Co.,  28  Barb.  (N.  Y.) 
9;  Hyatt  v.  Adams,  16  Mich.  ISO;  Long  v.  Morrison,  14  Ind.  595,  77  Am. 
Dec.  72;  Kixon  v.  Ludlain,  50  111.  App.  27:1 

7  s  Railway  Co.  v.  Whitton's  Aclm'r,  13  Wall.  270,  20  L.  Ed.  571  ;    Pennsy^ 
vania  R.  Co.  v.  Goodman,  62  Pa.  329 ;   Delaware,  L.  &  W.  R.  Co.  v.  Jones,  128 
Pa.  308,  IS  Atl.  330. 

7 »  Glenn  v,  Western  Union  Telegraph  Co.,  1  Ga.  App.  821,  58  S.  E.  83; 
Patelski  v.  Snyder,  179  111.  App.  24;  Brown  v.  Kistloman,  177  Ind.  692,  98 
N.  E.  631,  40  L.  R.  A.  (N.  S.)  236;  Feneff  v.  New  York  Cent.  &  H.  R.  R. 
Co.,  203  Mass.  278,  89  N.  E.  436,  24  L.  R.  A.  (N.  S.)  1024,  133  Am.  St.  Rep. 
291;  Stout  v.  Kansas  City  Terminal  Ry.  Co.,  172  Mo.  App.  113,  157  S.  W. 


§§  45-46)       ENTICING,  ETC.,  OR  ALIENATION   OP  AFFECTION  113 

ACTIONS  FOR  ENTICING,  HARBORING,  OR  ALIENA- 
TION OF  AFFECTION 

45.  A  husband  has  a  right  of  action  for  damages  against  any  one 

who  entices  away  or  harbors  his  wife,  or  who  alienates  her 
affections,  though  there  is  no  enticing  away. 

EXCEPTIONS — (a)  A  person  who  harbors  a  wife,  not  from 
improper  motives,  but  from  motives  of  humanity,  as  where 
she  has  been  forced  to  leave  her  husband  from  fear  of 
bodily  harm,  is  not  liable. 

(b)  Parents  are  not  liable  for  advising  a  daughter  to  leave  her 
husband,  or  for  harboring  her,  where  they  act  from  proper 
motives;  and,  in  this  class  of  cases,  proper  motives  will  be 
presumed  until  the  contrary  appears.  The  same  rule  has 
been  applied  to  the  case  of  parent  and  son. 

46.  In  most,  but  not  all,  jurisdictions,  a  wife  has  a  right  of  action 

against  one  who  entices  away,  or  alienates  the  affections 
of,  her  husband ;  at  least,  where  her  disability  to  sue  alone 
has  been  removed  by  statute.  According  to  the  weight  of 
opinion,  the  right  exists  even  at  common  law. 

Action  by  Husband 

Since  a  husband  is  entitled  to  his  wife's  society  and  services,  he 
has  a  right  of  action  against  one  who  alienates  her  affections  from 
him,  or  who  deprives  him  of  her  society  and  services  by  enticing 
her  to  leave  him,  or  by  harboring  her.80  It  is  not  necessary  to  the 

1019;  Kosciolek  v.  Portland  Ry.,  Light  &  Power  Co.,  81  Or.  517,  160  Pac. 
132;  Emerson  v.  Taylor,  133  Md.  192,  104  Atl.  538,  5  A.  L.  R.  1045;  Smith 
v.  Nicholas  Bldg.  Co.,  93  Ohio.  St.  101,  112  N.  E.  204,  L.  R.  A.  3916E,  700, 
Ann.  Gas.  1918D,  206.  But  see  Flandermeyer  v.  Cooper,  85  Ohio  St.  327, 
98  N.  E.  102,  40  L.  R.  A.  (N.  S.)  360,  Ann.  Cas.  1913A,  983,  holding  that  a  per- 
son who  knowing  that  a  husband  by  constant  use  of  morphine  is  weakened 
in  body  and  mind,  after  repeated  protests  of  the  wife,  continues  to  sell  mor- 
phine to  the  husband  until  his  mind  is  destroyed  and  it  becomes  necessary 
to  confine  him  in  an  asylum,  is  liable  to  the  wife  in  damages.  To  the  same 
effect,  see  Moberg  v.  Scott,  38  S.  D.  422,  161  N.  W.  998,  L.  R.  A.  1917D,  732. 
so  1  Jag.  Torts,  466;  Winsmore  v.  Greenbank,  Willes,  577;  Smith  v.  Kaye, 
20  Times  Law  R.  261;  Hutcheson  v.  Peck,  5  Johns.  (N.  Y.)  196;  Rinehart 
v.  Bills,  82  Mo.  534,  52  Am.  Rep.  385 ;  Modisett  v.  McPike,  74  Mo.  636 ;  Had- 
ley  v.  Heywood,  121  Mass.  236;  Gilchrist  v.  Bale,  8  Watts  (Pa.)  355,  34 
Am.  Dec.  469 ;  Barbee  v.  Armstead,  32  N.  C.  530,  51  Am.  Dec.  404 ;  Higham 
v.  Vanosdol,  101  Ind.  161;  Rudd  v.  Rounds,  64  Vt.  432,  25  Atl.  438;  Taster 
v.  Stanley,  153  Mass.  148,  26  N.  E.  417,  10  L.  R.  A.  468;  Heermance  v. 

TIFF.P.&  D.REL.(3o  ED.)— 8 


114  RIGHTS   AND   DUTIES  INCIDENT  TO  COVERTURE  (Ch.  2 

husband's  cause  of  action  that  the  wife  shall  have  been  enticed  away 
from  him.  An  action  will  lie  for  alienation  of  her  affections,  al- 
though she  has  not  left  his  house,  and  he  has  suffered  no  pecuniary 
loss.  "It  is  perhaps  true  that  the  theory  of  such  an  action  was 
originally  the  loss  of  services,  for  it  was  presumed  that  by  the  se- 
duction or  alienation  the  wife's  services  were  rendered  less  valu- 
able. But  whatever  may  have  been  the  principle,  originally,  upon 
which  this  class  of  actions  was  maintained,  it  is  certain  that  the 
weight  of  modern  authority  bases  the  action  on  the  loss  of  the  con- 
sortium; that  is,  the  society,  companionship,  conjugal  affections, 
fellowship,  and  assistance.  The  suit  is  not  regarded  in  the  nature 
of  an  action  by  a  master  for  the  loss  of  the  services  of  his  servant, 
and  it  is  not  necessary  that  there  should  be  any  pecuniary  loss 
whatever."  81 

The  husband's  right  of  action  in  this  class  of  cases  is  not  defeat- 
ed by  showing  that  he  and  his  wife  did  not  live  happily  together.82 


James,  47  Barb.  (N.  Y.)  120;  Smith  v.  Rice,  178  Iowa,  673,  160  N.  W.  6;  Bo- 
land  v.  Stanley,  88  Ark.  562,  115  S.  W.  163,  129  Am.  St.  Rep.  114 ;  Francis 
v.  Outlaw,  127  Md.  315,  96  Atl.  517 ;  Huot  v.  Wise,  27  Minn.  68,  6  N.  W.  425 ; 
Fratini  v.  Caslinl,  66  Vt.  273,  29  Atl.  252,  44  Am.  St.  Rep.  843.  A  valid  com- 
mon-law marriage  will  entitle  a  party  thereto  to  maintain  a  suit  for  aliena- 
tion of  affections  as  in  the  case  of  a  statutory  marriage.  Butterfield  v. 
Ennis,  193  Mo.  App.  638,  186  S.  W.  1173.  The  right  to  recover  damages 
for  the  alienation  of  a  wife's  affections  does  not  have  to  rest  upon  aliena- 
tion, which  culminates  In  divorce.  Eklund  v.  Hackett,  106  Wash.  287,  179 
Pac.  803.  It  is  not  necessary,  to  recover  for  alienation  of  a  wife's  affections, 
that  her  debauchment  be  shown.  Linden  v.  McClintock  (Mo.  App.)  187  S.  W. 
82;  Ireland  v.  Ward,  51  Or.  102,  93  Pac.  932. 

si  Adams  v.  Main,  3  Ind.  App.  232,  29  N.  E.  792,  50  Am.  St  Rep.  266; 
Dodge  v.  Rush,  28  App.  D.  C.  149,  8  Ann.  Gas.  671;  Heermance  v.  James, 
47  Barb.  (N.  Y.)  120;  Rinehart  v.  Bills,  82  Mo.  534,  52  Am.  Rep.  385;  Big- 
aouette  v.  Paulet,  134  Mass.  123,  45  Am.  Rep.  307;  Sikes  v.  Tippins,  85  Ga. 
231,  11  S.  E.  662 ;  Bennett  v.  Bennett,  116  N.  Y.  584,  23  N.  E.  17,  6  L.  R.  A. 
553.  The  gist  of  the  action  is  not  the  loss  of  assistance;  but  is  the  loss 
of  consortium,  under  which  term  is  included  the  person,  affection,  assistance, 
and  aid  of  the  spouse.  McGregor  v.  McGregor  (Ky.)  115  S.  W.  802 ;  Jenness 
v.  Simpson,  84  Vt.  127,  78  Atl.  886. 

s 2  Bailey  v.  Kennedy,  148  Iowa,  715,  126  N.  W.  181;  Philpott  v.  Kirk- 
patrick,  171  Mich.  495,  137  N.  W.  232.  A  defendant  in  a  suit  for  alienation 
of  affections  will  not  be  exonerated  merely  because  plaintiff's  husband  is 
more  blamable  than  defendant.  Rott  v.  Goehring,  33  N.  D.  413,  157  N.  W. 
294,  L.  R.  A.  1916E,  1086,  Ann.  Cas.  191SA,  643.  While  the  husband's  neg- 
lect of  his  wife  or  even  his  adultery  would  not  alone  justify  another  in 
enticing  her  away,  yet,  if  he  had  thereby  already  lost  her  entire  affection, 
there  could  be  no  recovery.  Smith  v.  Rice,  178  Iowa,  673,  160  N.  W.  6. 
But  see  Miller  v.  Pearce,  86  Vt.  322,  85  Atl.  620,  43  L.  R.  A.  (N.  S.)  332. 


§§  45-46)      ENTICING,  ETC.,  OE  ALIENATION   OF  AFFECTION  135 

But  if,  on  account  of  their  unhappy  relations,  the  wife's  comfort  and 
society  are  of  less  moment  to  the  husband,  the  state  of  their  re- 
lations may  be  shown  in  mitigation  of  damages.83  Such  evidence, 
however,  must  be  confined  to  the  time  prior  to  her  relations  with 
the  defendant.84 

In  these  cases,  whether  there  was  malice  or  an  improper  motive 
is  always  a  material  consideration.85  Thus,  where  a  woman  is 
forced  to  leave  her  husband  from  fear  of  bodily  harm,  or  other 
sufficient  cause,  no  action  will  lie  against  one  who  receives  her 
from  motives  of  humanity.86  The  grounds  that  will  be  sufficient  to 
justify  a  stranger  in  interfering,  and  harboring  another's  wife,  must 
be  extreme.  For  instance,  it  has  been  held  that  ill  treatment,  in 
order  to  justify  a  person,  not  a  near  relative,  in  harboring  another's 
wife  to  secure  her  from  such  treatment  by  her  husband,  must  be  of 
,  so  cruel  a  character  as  to  endanger  her  personal  safety,  and  to  force 
her  to  remain  away  from  her  husband,  and  the  burden  of  proving 
that  it  is  so  is  on  such  party.87 

8s  Willis  v.  Bernard,  8  Bing.  376;  Morris  v.  Warwick,  42  Wash.  480,  85 
Pac.  42,  7  Ann.  Gas.  382 ;  Humphrey  v.  Pope,  1  Cal.  App.  374,  82  Pac.  223 ; 
Palmer  v.  Crook,  7  Gray  (Mass.)  418;  Hadley^v.  Heywood,  121  Mass.  236; 
Holtz  v.  Dick,  42  Ohio  St.  23,  51  Am.  Rep.  791;  Gilchrist  v.  Bale,  8  Watts 
(Pa.)  355,  34  Am.  Dec.  469 ;  Bailey  v.  Bailey,  94  Iowa,  598,  63  N.  W.  341. 

84  Fratini  v.  Caslini,  66  Vt.  273,  29  Atl.  252,  44  Am.  St.  Rep.  843. 

85  The  motive  with  which  the  defendant  acted  is  a  controlling  element  in 
an  action  for  alienating  affections.    Ellsworth  v.  Shimer,  71  Misc.  Rep.  576, 
128  N.  Y.  Supp.  883.    Malice  is  the  gist  of  the  cause  of  action  for  alienating 
affections.    Hostetter  v.  Green,  150  Ky.  551,  150  S.  W.  652.    In  an  action  for 
alienation  of  a   wife's  affections,  the  term   "malice"   does-  not  necessarily 
mean  that  which  must  proceed  from  a  spiteful,  malignant,  or  revengeful 
disposition,  but,  if  the  conduct  was  unjustifiable  and  actually  caused  the 
injury,  malice  in  law  will  be  implied.    Boland  v.  Stanley,  88  Ark.  562,  115 
S.  W.  163,  129  Am.  St.  Rep.  114. 

sephilp  v.  Squire,  1  Peake,  82;  Berthon  v.  Cartwright,  2  Esp.  480;  John- 
son v.  Allen,  100  Is.  C.  131,  5  S.  E.  666;  Bennett  v.  Smith,  21  Barb.  (N.  Y.) 
439;  Barnes  v.  Allen,  30  Barb.  (N.  Y.)  663;  Tasker  v.  Stanley,  153  Mass. 
148,  26  N.  E.  417,  10  L.  R.  A.  468 ;  Turner  v.  Estes,  3  Mass.  317.  And  see 
Modisett  v.  McPike,  74  Mo.  636.  One -allowing  his  wife's  mother  to  remain 
in  his  house  against  her  husband's  wishes  is  not  liable  to  the  husband  on 
account  of  the  mere  failure  to  expel  her,  where  there  is  no  concealment, 
denial  of  free  access,  or  attempt  to  influence  her  to  remain.  Turner  v. 
Estes,  3  Mass.  317. 

-  ST  Johnson  v.  Allen,  100  N.  C.  131,  5  S.  E.  666.  See,  also,  Smith  v.  Kaye, 
20  Times  Law  R.  261,  where  it  is  said  that  in  an  action  for  enticing  the 
questions  the  jury  have  to  consider  are  whether  the  defendant  persuaded, 
induced,  or  incited  the  wife  to  leave,  or  procured  her  leaving,  and  whether  in 
consequence  thereof  she  did  leave.  If  the  wife  merely  asked  the  defendant 


116  BIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  (Ch.  2 

The  question  of  motive  most  frequently  arises  in  cases  where  a 
parent  induces  a  daughter  to  leave  her  husband,  or  harbors  her  after 
she  has  left  him.  The  rule  is  that,  in  the  absence  of  improper  mo- 
tives, the  parent  is  not  liable  to  the  husband.  And  stronger  proof 
is  necessary  as  against  a  parent  than  as  against  a  stranger.  Mr. 
Schouler  states  the  legal  doctrine  to  be  "that  honest  motives  may 
shield  a  parent  from  the  consequences  of  indiscretion,  while  adding 
nothing  to  the  right  of  actual  control — the  intent  with  which  the 
parent  acted  being  the  material  point,  rather  than  the  justice  of 
the  interference;  that  a  husband  forfeits  his  right  to  sue  others  for 
enticement,  where  his  own  misconduct  justified  and  actually  caused 
the  separation ;  .but  that  otherwise  his  remedy  is  complete  against 
all  persons  whomsoever  who  have  lent  their  countenance  to  any 
scheme  for  breaking  up  his  household."  88  In  the  case  of  a  father 
harboring  his  daughter,  Chancellor  Kent  held  that  stronger  proof 
is  necessary  against  a  father  than  against  a  stranger,  and  that  it 
ought  to  appear  either  that  he  detains  the  wife  against  her  will, 
or  that  he  enticed  her  away  from  her  husband  from  improper  mo- 
tives.89 "A  father's  house,"  he  said,  "is  always  open  to  his  children. 
Whether  they  be  married  or  unmarried,  it  is  still  to  them  a  refuge 
from  evil,  and  a  consolation  in  distress.  Natural  affection  estab- 
lishes and  consecrates  this  asylum." 

The  rule,  therefore,  is  well  settled  that  a  husband  cannot  main- 
tain an  action  against  his  wife's  parents  for  enticing  her  away  from 
him,  or  for  harboring  her,  unless  it  is  both  alleged  and  proved  that 
they  acted  from  improper  motives.90  As  was  said  by  the  Tennessee 

for  advice,  and  the  defendant  merely  approved  of  her  leaving,  the  defendant 
will  not  be  liable  if  such  advice  was  given  in  good  faith;  it  might  be  dif- 
ferent if  the  advice  was  volunteered.  A  stranger  in  blood  inducing  a  wife 
to  leave  her  husband,  or  taking  her  away  with  or  without  her  consent,  and 
encouraging  her  to  remain  away  from  him,  does  so  at  his  peril,  and  the 
burden  is  on  him  to  show  good  cause,  good  faith,  and  justification  for  such 
acts.  Luick  v.  Arends,  21  N.  D.  614,  132  N.  W.  353;  Boland  v.  Stanley,  88 
Ark.  562,  115  S.  W.  163,  129  Am.  St.  Rep.  114. 

ss  Schouler,  Husb.  &  W.  §  64. 

so  Hutcheson  v.  Peck,  5  Johns.  (N.  Y.)  196. 

»o  Reed  v.  Reed,  6  Ind.  App.  317,  33  N.  E.  638,  51  Am.  St.  Rep.  310;  Pow- 
ell v.  Benthall,  136  N.  C.  145,  48  S.  E.  598 ;  Miller  v.  Miller,  122  Mo,  App. 
693,  99  S.  W.  757;  Multer  v.  Knibbs,  193  Mass.  556,  79  N.  E.  762,  9  L.  R. 
A.  (N.  S.)  322,  9  Ann.  Cas.  958;  Payne  v.  Williams,  4  Baxt  (Tenn.)  585; 
Glass  v.  Bennett,  89  Tenn.  478,  14  S.  W.  1085;  Francis  v.  Outlaw,  127 
Md.  315,  96  Atl.  517;  Fronk  v.  Fronk,  159  Mo.  App.  543,  141  S.  W.  692; 
Beisel  v.  Gerlach,  221  Pa.  232,  70  Atl.  721,  18  L.  R,  A.  (N.  S.)  516 ;  Hutche- 
son v.  Peck,  5  Johns.  (N.  Y.)  196;  Rabe  v.  Haima,  5  Ohio,  530;  Huling  v. 


§§  45-46)      ENTICING,  ETC.,  OR   ALIENATION  OF  AFFECTION  117 

court :  "There  can  be  no  law  to  restrain  the  parent  from  honestly 
and  sincerely  endeavoring  to  protect  his  daughter,  by  means  of 
counsel  and  warning,  from  impending  ruin  or  disgrace,  or  wreck  of 
her  happiness  or  usefulness  for  life.  There  is  a  marked  distinction 
between  the  rights  and  privileges  of  a  parent,  in  such  cases,  and 
those  of  a  mere  intermeddling  stranger.  A  father  has  no  right  to 
restrain  his  daughter  from  returning  to  her  husband,  if  she  desires 
to  do  so.  On  the  other  hand,  he  may  lawfully  give  counsel  and 
honest  advice  for  her  own  good,  and  shelter  her  in  his  own  house,  if 
she- chooses  to  remain  with  him."  91 

The  same  doctrine,  it  has  been  held  applies  where  a  wife  seeks 
to  recover  from  her  husband's  parent  for  enticing  him  away.92  And 
there  is  no  reason  why  it  should  not  apply  where  a  brother  advises 
and  harbors  his  sister,  or  where  a  wife  is  advised  or  harbored  by 
one  who  has  stood  in  loco  parentis  towards  her.98 


Ruling,  32  111.  App.  519;  Bennett  v.  Smith,  21  Barb.  (N.  Y.)  439;  Burnett 
v.  Burkhead,  21  Ark.  77,  76  Am.  Dec.  358;  Holtz  v.  Dick,  42  Ohio  St.  23, 
51  Am.  Rep.  791;  Turner  v.  Estes,  3  Mass.  317;  Friend  v.  Thompson, 
Wright  (Ohio)  636;  Westlake  v.  Westlake,  34  Ohio  St.  621,  32  Am.  Rep. 
397;  Smith  v.  Lyke,  13  Hun,  204;  White  v.  Ross,  47  Mich.  172,  10  N.  W. 
189.  Parents  who  act  without  malice  in  giving  counsel  and  advice  to  a  daugh- 
ter, who  has  contracted  a  marriage  with  a  man  believed  by  them  wholly 
unfitted  to  make  her  happy,  cannot  be  held  liable  for  alienation.  Kleist  v. 
Breitung,  232  Fed.  555,  146  C.  C.  A.  513,  Ann.  Gas.  1917E,  1014. 

»i  Payne  v.  Williams,  4  Baxt.  (Tenn.)  585 ;  Jones  v.  Monson,  137  Wis.  478, 
119  N.  W.  179,  129  Am.  St.  Rep.  1082 ;  Pooley  v.  Dutton,  165  Iowa,  745,  147 
N.  W.  154.  To  the  same  effect,  see  Multer  v.  Knibbs,  193  Mass.  556,  79  N.  E. 
762,  9  L.  R,  A.  (N.  S.)  322,  9  Ann.  Cas.  958,  and  Barton  v.  Barton,  119  Mo. 
App.  507,  94  S.  W.  574.  In  the  last  case  it  was  said  that  circumstances 
will  excuse  a  parent  for  advising  a  son  regarding  his  domestic  affairs  and 
influencing  a  separation  from  his  wife,  especially  when  he  is  a  minor,  which 
will  not  excuse  like  interference  by  another.  A  parent,  while  excluding 
from  his  home  the  spouse  of  a  child,  may  yet  receive  his  own  child  there- 
in. Smith  v.  Smith,  192  Mich.  566,  159  N.  W.  349. 

92  Reed  v.  Reed,  6  Ind.  App.  317,  33  N.  E.  638,  51  Am.  St.  Rep.  310;    Gregg 
v.  Gregg,  37  Ind.  App.  210,  75  N.  E.  674;    Workman  v.  Workman,  43  Ind. 
App.  382,  85  N.  E.  997;    Heisler  v.  Heisler,  151  Iowa,  503,  131  N.  W.  676; 
Cooper  v.  Cooper,  102  Kan.  378,  171  Pac.  5.     The  circumstance  that  a  child 
is  married  does  not  sever  his  relations  with  his  parents,  who  may  counsel 
him,  if  in  good  faith,  even  relating  to  matters  between  himself  and  wife. 
Moir  v.  Moir,  181  Iowa,  1005,  165  N.  W.  221.    While  a  mother,  if  acting  in 
good  faith,  may  counsel  her  son  as  to  his  relations  with  his  wife,  yet,  if 
she  maliciously  interferes  with  his  domestic  affairs,  she  may  be  liable  for 
wrongfully  alienating  his  affections  from  his  wife.     Allcock  v.  Allcock,  174 
Ky.  665,  192  S.  W.  853. 

93  See  Glass  v.  Bennett,  89  Tenn.  478,  14  S.  W.  1085;    Powell  v.  Benthall, 


118  RIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  (Ch.  2 

A  parent  or  person  in  loco  parentis  will  only  be  protected  under 
this  doctrine  where  he  acted  from  proper  motives.  Even  a  mother 
is  liable  to  her  son-in-law  if  she  entices  her  daughter  away  from 
him,  or  harbors  her,  not  from  proper  motives,  but  because  she  does 
not  like  him.94 

A  person  may.  render  himself  liable  under  this  doctrine  by  in- 
ducing a  woman  to  obtain  a  divorce  from  her  husband,  or  vice 
versa.  It  has  been  held  that,  though  a  wife  may  have  just  cause 
for,  and  may  obtain,  a  divorce  from  her  husband,  yet,  if  she  would 
not  have  obtained  the  divorce  except  for  the  unsolicited  interference 
of  a  third  person,  the  divorce  does  not  constitute  any  defense  to  an 
action  by  the  husband  for  loss  of  his  wife's  society,  though  it  would 
be  otherwise  if  the  wife  sought  the  advice  of  her  own  motion.95 

Action  by  Wife 

There  is  a  conflict  of  opinion  as  to  the  right  of  the  wife  to  main- 
tain an  action  at  common  law  against  another  for  enticing  away 
her  husband,  or  alienating  his  affections.  In  some  jurisdictions  it 
has  been  held  that  neither  at  common  law  9e  nor  under  the  statutes 
allowing  married  women  to  sue  97  can  such  an  action  be  main- 
tained. On  the  other  hand  in  many  well-considered  cases,  the 
right  of  the  wife  to  sue  at  common  law  has  be^n  recognized,98 


136  N.  C.  145,  48  S.  E.  598;  Ratcliffe  v.  Walker,  117  Va.  569,  85  S.  E,  575, 
Ann.  Cas.  1917E,  1022;  Balrd  v.  Carle,  157  Wis.  565,  147  N.  W.  834. 

9*  Holtz  v.  Dick,  42  Ohio  St.  23,  51  Am.  Rep.  791.  And  see  Railsback  v. 
Railsback,  12  Ind.  App.  659,  40  N.  E.  276,  1119,  and  Klein  v.  Klein,  101 
S.  W.  382,  31  Ky.  Law  Rep.  28. 

»5  Modisett  v.  McPike,  74  Mo.  636. 

»e  Duffies  v.  Duffies,  76  Wis.  374,  45  N.  W.  522,  8  L.  R.  A.  420,  20  Am. 
St.  Rep'.  79.  (Cassoday,  J.,  dissenting.)  In  this  case  the  question  is  con- 
sidered at  length,  and  many  authorities  are  collated.  See,  also,  Doe  v. 
Roe,  82  Me.  503,  20  Atl.  83,  8  L.  R.  A.  833,  17  Am.  St.  Rep.  499 ;  Morgan  v. 
Martin,  92  Me.  190,  42  Atl.  354;  Hodge  v.  Wetzler,  69  N.  J.  Law,  490,  55 
Atl.  49 ;  Crocker  v.  Crocker  (C.  C.)  98  Fed.  702 ;  Mehrhoff  v.  Mehrhoff  (C.  C.) 
26  Fed.  13 ;  Houghton  v.  Rice,  174  Mass.  366,  54  N.  E.  843,  47  L.  R,  A.  310, 
75  Am.  St.  Rep.  351. 

87  Duffies  v.  Duffies,  76  Wis.  374,  45  N.  W.  522,  8  L.  R.  A.  420,  20  Am.  St. 
Rep.  79 ;  Hodge  v.  Wetzler,  69  N.  J.  Law,  490,  55  Atl.  49. 

»sNoxon  v.  Remington,  78  Conn.  296,  61  Atl.  693;  Foot  v.  Card,  58  Conn. 
1,  18  Atl.  1027,  6  L.  R.  A.  829,  18  Am.  St  Rep.  258;  Bennett  v.  Bennett, 
116  N.  Y.  584,  23  N.  E.  17,  6  L.  R.  A.  553 ;  Haynes  v.  Nowlin,  129  Ind.  581, 
29  N.  E.  389,  14  L.  R.  A.  787,  28  Am.  St.  Rep.  213 ;  Holmes  v.  Holmes,  133 
Ind.  386,  32  N.  E.  932;  Seaver  v.  Adams,  66  N.  H.  142,  19  Atl.  776,  49  Am. 
St.  Rep.  597;  Lynch  v.  Knight,  9  H.  L.  Cas.  577,  5  Law  Times  Rep,'(N. 
S.)  291. 


§§  45-46)       ENTICING,  ETC.,  OR   ALIENATION   OF  AFFECTION  119 

though  it  must  be  confessed  that  in  a  majority  of  the  cases  so 
holding  the  opinion  thus  expressed  is  in  the  nature  of  dictum.  The 
reasoning  of  these  cases  is  "that,  inasmuch  as  the  husband  has  the 
right  to  sue  for  the  loss  of  the  consortium  of  the  wife,  there  can 
be  no  intelligent  reason  why  she  should  not  possess  the  right  to 
sue  for  the  loss  of  the  society,  companionship,  affections,  and  pro- 
tection of  the  husband,  which  the  law  has  vouchsafed  to  her."  " 
"It  was  the  boast  of  the  common  law  that  'there  is  no  right  with- 
out a  remedy,'  and  in  the  main  this  boast  was  not  an  idle  one,  but 
was  made  good  bv  the  vindication  of  legal  rights  in  almost  all  in- 
stances where  the  right  was  appropriately  presented  for  judicial 
consideration  and  determination.  *  *  *  The  principle  outlined 
in  the  maxim  quoted  requires  that  even  where  the  common  law,  as 
it  now  exists,  prevails,  it  should  be  held  that  a  wife  may  have  an 
action  against  the  wrongdoer  who  deprives  her  of  the  society,  sup- 
port, and  affections  of  her  husband.  If  there  is  any  such  thing  as 
legal  truth  and  legal  right,  a  wronged  wife  may  have  her  action  in 
such  a  case  as  this ;  for,  in  all  the  long  category  of  human  rights, 
there  is  no  clearer  right  than  that  of  the  wife  to  her  husband's 
support,  society,  and  affection.  An  invasion  of  that  right  is  a 
flagrant  wrong,  and  it  would  be  a  stinging  and  bitter  reproach  to 
the  law  if  there  were  no  remedy."  x 

Whatever  may  have  been  the  rule  at  common  law,  however,  it  is 
well  settled  by  the  weight  of  authority  that  since  the  loss  of  service 
is  not  necessary  to  the  action,  and  the  right  to  each  other's  society 
and  comfort  is  reciprocal,2  the  wife  may  maintain  such  an  action 
when  her  common-law  disability  to  sue  alone  has  been  removed  by 
statute.8 

»»Adams  v.  Main,  3  Ind.  App.  232,  29  N.  E.  792,  50  Am.  St.  Rep.  266. 

1  Haynes  v.  Nowlin,  129  Ind.  581,  29  N.  E.  389,  14  L.  R.  A.  787,  28  Am. 
St.  kep.  213. 

2  uodge  v.  Rush,  28  App.  D.  C.  149,  8  Ann.  Gas.  671 ;    Gregg  v.  Gregg,  37 
Ind.  App.  210,  75  N.  E.  674. 

s  Weber  v.  Weber,  113  Ark.  471,  169  S.  W.  318,  L.  R.  A.  1915A,  67,  Ann. 
Gas.  1916C,  743;  Work  v.  Campbell,  164  Gal.  343,  128  Pac.  943,  43  L,  R. 
A.  (N.  S.)  581;  Workman  v.  Workman,  43  Ind.  App.  382,  85  N.  E.  997;  Gross 
v.  Gross,  70  W.  Va.  317,  73  S.  E.  961,  39  L.  R.  A.  (N.  S.)  261 ;  Sims  v.  Sims, 
79  N.  J.  Law,  577,  76  Atl.  1063,  29  L.  R.  A.  (N.  S.)  842,  Cooley  Gas.  Persons 
and  Domestic  Relations,  52,  reversing  77  N.  J.  Law,  •  251,  72  Atl.  424 ;  Rott 
v.  Goehring,  33  N.  D.  413,  157  N.  W.  294,  L.  R.  A.  1916E,  1086,  Ann.  Gas. 
1918A,  643 ;  Parker  v.  Newman,  200  Ala.  103,  75  South.  479 ;  Bennett  v.  Ben- 
nett, 116  N.  Y.  584,  23  N.  E.  17,  6  L.  R.  A.  553 ;  Smith  v.  Gillapp,  123  111. 
App.  121;  Nolin  v.  Pearson,  191  Mass.  283,  77  N.  E.  890,  4  L.  R.  A.  (N.  S.) 


120  RIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  (Ch.  2 


ACTION  FOR  CRIMINAL  CONVERSATION 

47.  An  action  for  damages,  known  as  an  "action  for  criminal  con- 
versation," lies  by  a  husband  against  one  who  has  inter- 
course with  his  wife  without  his  consent. 

Closely  allied  to  suits  for  enticing  and  harboring,  and  still  more 
closely  connected  with  suits  for  alienation  of  affection,  are  suits  for 
criminal  conversation.  In  such  an  action  a  husband  can  recover 
damages  against  any  one  who  has  intercourse  with  his  wife  without 
his  consent.4  "Adultery,  or  criminal  conversation  with  a  man's 
wife,  though  it  is,  as  a  public  crime,  left  by  our  laws  to  the  coercion 
of  the  spiritual  courts,  yet,  considered  as  a  civil  injury  (and  surely 
there  can  be  no  greater),  the  law  gives  a  satisfaction  to  the  husband 
for  it  by  action  of  trespass  vi  et  armis  against  the  adulterer  where- 
in the  damages  recovered  are  usually  very  large  and  exemplary."  6 
This  action  does  not,  like  actions  for  enticing,  harboring,  or  aliena- 

643,  114  Am.  St  Rep.  605,  6  Ann.  Gas.  658;  Keen  v.  Keen,  49  Or.  362,  90 
Pac.  147,  10  L.  R.  A.  (N.  S.)  504,  14  Ann.  Cas.  45;  Warren  v.  Warren,  89 
Mich.  123,  50  N.  W.  842,  14  L.  R.  A.  545;  Westlake  v.  Westlake,  34  Ohio 
St  621,  32  Am.  Rep.  397 ;  Haynes  v.  Nowlin,  129  Ind.  581,  29  N.  E.  389,  14 
L.  R.  A.  787,  28  Am.  St.  Rep.  213;  Adams  v.  Main,  3  Ind.  App.  232,  29  N. 
E.  792,  50  Am.  St.  Rep.  266;  Holmes  v.  Holmes,  133  Ind.  386,  32  N.  E.  932; 
Reed  v.  Reed,  6  Ind.  App.  317,  33  N.  E.  638,  51  Am.  St.  Rep.  310 ;  Railsback 
v.  Railsback,  12  Ind.  App.  659,  40  N.  E.  276,  1119;  Seaver  v.  Adams,  66  X. 
H.  142,  19  Atl.  776,  49  Am.  St.  Rep.  597;  Bassett  v.  Bassett,  20  111.  App. 
543;  Huling  v.  Huling,  32  111.  App.  519;  Williams  v.  Williams,  20  Colo. 
51,  37  Pac.  614;  Mehrhoff  v.  Mehrhoff  (C.  C.)  26  Fed.  13;  Waldron  v.  Wal- 
dron  (C.  C.)  45  Fed.  315;  Price  v.  Price,  91  Iowa,  693,  60  N.  W.  202,  29 
L.  R.  A.  150,  51  Am.  St.  Rep.  360;  Bailey  v.  Bailey,  94  Iowa,  598,  63  N. 
W.  :;il;  riodgkinson  v.  Hodgkinson,  43  Neb.  269,  61  N.  W.  577,  27  L.  R.  A. 
120,  47  Am.  St.  Rep.  759 ;  Breiman  v.  Paasch,  7  Abb.  N.  C.  (N.  Y.)  249 ;  Bak- 
er v.  Baker,  16  Abb.  N.  C.  (N.  Y.)  293 ;  Jaynes  v.  Jaynes,  39  Hun,  40 ;  Clow 
v.  Chapman,  125  Mo.  101,  28  S.  W.  328,  26  L.  R.  A.  412,  46  Am.  St.  Rep.  468. 

«3  Bl.  Comm.  139;  Add.  Torts,  589;  1  Jag.  Torts,  465,  467,  and  cases 
cited;  1  Bish.  Mar.,  Div.  &  Sep.  §  1365;  Smith  v.  Hookenberry,  138  Mich. 
129,  101  N.  W.  207;  Id.,  146  Mich.  7,  109  N.  W.  23,  117  Am.  St  Rep.  615, 
10  Ann.  Cas.  60;  Hadley  v.  Heywood,  121  Mass.  236;  Winter  v.  Henn,  4 
Car.  &  P.  498 ;  Crose  v.  Rutledge,  81  111.  266 ;  Scott  v.  O'Brien,  129  Ky.  1,  110 
S.  W.  260,  16  L.  R.  A.  (N.  S.)  742,  180  Am.  St.  Rep.  419 ;  Scripps  v.  Reilly. 
38  Mich.  23 ;  Egbert  v.  Greenwalt,  44  Mich.  245,  6  N.  W.  654,  38  Am.  Rep.  260 ; 
Dalton  v.  Dregge,  99  Mich.  250,  58  N.  W.  57;  Wood  v.  Mathews,  47  Iowa, 
409;  Van  Vacter  v.  McKillip,  7  Blackf.  (Ind.)  578;  Ferguson  v.  Smethers, 
70  Ind.  519,  36  Am.  Rep.  186;  and  cases  hereafter  cited. 

»  3  Bl.  Comm.  139.  The  term  "criminal  conversation,"  in  its  general  and 
comprehensive  sense,  is  synonymous  with  "adultery";  but  in  its  more  lim- 


§  47)  ACTION   FOR   CRIMINAL  CONVERSATION  121 

tion  of  affection,  rest  on  the  loss  of  the  wife's  society,  affection,  or 
services;  but  it  rests  on  the  injury  sustained  by  the  defilement  of 
the  marriage  bed,  the  invasion  of  the  husband's  exclusive  right  to 
marital  intercourse,  and  the  suspicion  cast  upon  the  legitimacy  of 
the  offspring.6  One  who  commits  rape  is  liable  in  this  action.7 
The  intercourse  need  not  have  been  the  result  of  seduction.8  It  is 
true  that,  as  in  actions  for  enticing,  harboring,  etc.,  the  husband 
may,  in  an  action  for  criminal  conversation,  show  the  alienation  of 
.his  wife's  affection,  and  the  loss  of  her  services,  society,  etc.,  but 
this  only_  goes  in  aggravation  of  damages.9  It  need  not  necessarily 
be  shown,  for  the  action  is  not  based  on  any  pecuniary  loss.10  The 
relations  in  which  the  .spouses  lived,  whether  happy  or  otherwise, 
and  previous  acts  of  adultery,  either  by  the  husband  or  the  wife, 
may  always  be  shown,  as  bearing  on  the  question  of  damages.11 

Ited  and  technical  signification  it  may  be  defined  as  adultery  in  the  aspect 
of  a  tort.  Turner  v.  Heavrin,  182  Ky.  65,  206  S.  W.  23,  4  A.  L.  R.  562. 

e  Reeve,  Dom.  Rel.  (4th  Ed.)  90 ;  Cooley,  Torts,  224 ;  Kroessin  v.  Keller, 
60  Minn.  372.  62  N.  W.  438,  27  L.  R.  A.  685.  51  Am.  St.  Rep.  533 ;  Bigaouette 
v.  Paulet,  134  Mass.  123,  45  Am.  Rep.  307;  Johnston  v.  Disbrow,  47  Mich. 
59,  10  N.  W.  79;  Egbert  v.  Greenwalt,  44  Mich.  245,  6  N.  W.  654,  38  Am. 
Rep.  260;  Yundt  v.  Hartrunft,  41  111.  9;  Wood  v.  Mathews,  47  Iowa,  409; 
Bedan  v.  Turney,  99  Cal.  649,  34  Pac.  442. 

7  Egbert  v.  Greenwalt,  44  Mich.  245,  6  N.  W.  654,  38  Am.  Rep.  260 ;  Bigaou- 
ette v.  Paulet,  134  Mass.  123,  45  Am.  Rep.  307. 

s  Weedon  v.  Timbrell,  5  Term  R.  360 ;  Wales  v.  Miner,  89  Ind.  118 ;  Wood 
v.  Mathews,  47  Iowa,  409;  Hadley  v.  Heywood,  121  Mass.  236. 

9  The  cause  of  action  for  criminal  conversation  exists  independently  of  a 
cause  of  action  for  alienation  of  the  affections.     Barlow  v.  Barnes,  172  Cal. 
98,  155  Pac.  457.     In  the  action  for  criminal  conversation,  proof  of  aliena- 
tion of  the  affections  is  unnecessary.     Merritt  v.  Cravens,  168  Ky.  155,  181 
S.  W.  970,  !».  R.  A.  1917F,  935.    But  alienation  of  affections  may  be  shown 
in  aggravation  of  damages.     Stark  v.  Johnson,  43  Colo.  243,  05  Pac.  930, 
16  L.  R.  A.  (N.  S.)  674,  127  Am.  St.  Rep.  114,  15  Ann.  Cas.  868.    The  gist  or 
gravamen  of  the  charge  is  the  criminal  conversation,  the  alienation  of  the 
spouse's  affections  being  incidental  and  material  only  in  so  far  as  it  affects 
the  quantum  of  damages.     Watkins  v.  Lord,  31  Idaho,  352,  171  Pac.  1133. 

10  See  cases   above   cited.     And   see  Prettyman  v.   Williamson,   1   Penne- 
will  (Del.)  224,  39  Atl.  731;   Long  v.  Booe,  106  Ala.  570,  17  South.  716. 

us  Suth.  Dam.  745;  Add.  Torts,  593;  2  Greenl.  Ev.  §  56;  Reeve,  Dom. 
Rel.  (4th  Ed.)  91;  Winter  v.  Henn,  4  Car.  &  P.  494;  Bromley  v.  Wallace,  4 
Esp.  237;  Coleman  v.  White,  43  Ind.  429;  Browning  v.  Jones,  52  111.  App. 
597;  Hadley  v.  Heywood,  121  Mass.  236;  Con  way  v.  Nicol,  34  Iowa,  533; 
Dance  v.  McBride,  43  Iowa,  624;  Dalton  v.  Dregge,  99  Mich.  250,  58  N.  W. 
57;  Smith  v.  Masten,  15  Wend.  (N.  Y.)  270;  Shattuck  v.  Hammond,  46 
Vt.  466,  14  Am.  Rep.  631;  Norton  v.  Warner,  9  Conn.  172;  Rea  v.  Tucker, 
51  111.  110,  99  Am.  Dec.  539;  Torre  v.  Summers,  2  Nott  &  McC.  (S.  C.)  267, 
10  Am.  Dec.  597.  In  mitigation  of  damages,  it  may  be  shown  that  the  wife 


122  RIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  (Ch.  2 

But  they  cannot  be  relied  upon  to  defeat  the  husband's  action  en- 
tirely. A  husband  may  sue  for  criminal  conversation,  though  he 
is  living  apart  from  his  wife,  and  leading  a  dissolute  life.12 

It  is,  of  course,  a  good  defense  to  the  action,  on  the  principle, 
"Volenti  non  fit  injuria,"  that  the  husband  consented  to  the  par- 
ticular act  of  intercourse  complained  of,  or  that  he  gave  his  wife  a 
general  license  to  conduct  herself  with  other  men  as  she  saw  fit, 
or  allowed  her  to  live  as  a  common  prostitute.18 

But  continued  cohabitation  after  knowledge  of  acts  of  adultery, 
though  amounting  to  condonation,  barring  an  action  for  divorce,14 
is  not  a  defense  to  the  action  for  criminal  conversation.16 

When  we  consider  the  grounds  upon  which  the  action  for  criminal 
conversation  rests,  it  would  seem  clear  that  a  wife  could  not  main- 
tain such  an  action  against  another  woman  for  having  intercourse 
with  her  husband,  and  it  has  been  so  held.16  There  are  cases  to  the 
contrary,  or  apparently  so;  but  in  these  cases  the  court  relied,  as 
authority  for  their  decision,  upon  those  cases  which  uphold  an  ac- 
tion by  a  wife  for  alienation  of  her  husband's  affection,  or  for  en- 
ticing him  away.17  As  we  have  seen,  the  grounds  for  these  differ- 
ent kinds  of  action  are  different.  Because  a  wife  is  allowed  to 

was  the  seducer.  Elsam  v.  Faucett,  2  Esp.  562;  Ferguson  v.  Smethers,  70 
Ind.  519,  36  Am.  Rep.  186. 

"Browning  v.  Jones,  52  111.  App.  597;  Evans  v.  Evans,  68  Law  J.  Prob. 
70,  [1899]  Prob.  195,  81  Law  T.  (N.  S.)  60. 

is  Winter  v.  Henn,  4  Car.  &  P.  494;  Hodges  v.  Windham,  1  Peake,  38;  Bun- 
nell  v.  Greathead,  49  Barb.  (N.  Y.)  106;  Morning  v.  Long,  109  Iowa,  288, 
80  N.  W.  390 ;  Rea  v.  Tucker,  51  111.  110,  99  Am.  Dec.  539 ;  Stuinm  v.  Hum- 
mel, 39  Iowa,  478 ;  Cook  v.  Wood,  30  Ga.  891,  76  Am.  Dec.  677 ;  Sanborn  v. 
Neilson,  4  N.  H.  501;  Schorn  v.  Berry,  63  Hun,  110,  17  N.  Y.  Supp.  572; 
Fry  v.  Drestler,  2  Yeates  (Pa.)  278.  Connivance  by  a  husband,  sufficient 
to  bar  an  action  for  criminal  conversation,  must  be  such  conduct  as  when, 
subjected  to  the  test  of  reasonable  human  transactions,  shows  an  inten- 
tion to  connive,  evidenced  by  his  active  or  passive  assent  to  transactions 
tending  to  convince  an  ordinarily  prudent  person  of  his  wife's  offense. 
Kohlhoss  v.  Mobley,  102  Md.  199,  62  Atl.  236,  5  Ann.  Cas.  865. 

i*  See  post,  p.  277. 

is  Smith  v.  Hockenberry,  138  Mich.  129,  101  N.  W.  207;  Id.,  146  Mich. 
7,  109  N.  W.  23,  117  Am.  St.  Rep.  615,  10  Ann.  Cas.  60;  Sanborn  v.  Xeilson, 
4  N.  H.  501 ;  Clouser  v.  Clapper,  59  Ind.  548 ;  Verholf  v.  Van  Houwenlengen, 
21  Iowa,  429 ;  Sikes  v.  Tippins,  85  Ga.  231,  11  S.  E.  662 ;  Powers  v.  Powers, 
10  Prob.  Div.  174. 

ieKroessin  v.  Keller,  60  Minn.  372,  62  N.  W.  438,  27  L.  R.  A.  685,  51 
Am.  St.  Rep.  533. 

if  Seaver  v.  Adams,  66  N.  H.  142,  19  Atl.  776,  49  Am.  St.  Rep.  597;  Haynes 
v.  Nowlin,  129  Ind.  581,  29  N.  E.  389,  14  L.  R.  A.  787,  28  Am.  St.  Rep.  213 ; 
Dodge  v.  Rush,  28  App.  D.  C.  149,  8  Ann.  Cas.  671. 


§  47)  ACTION   FOR   CRIMINAL  CONVERSATION  123 

maintain  an  action  against  a  woman  who  entices  her  husband  away 
from  her,  or  alienates  his  affections  without  enticing-  him  away,  is 
no  reason  for  holding  that  a  wife  can  maintain  an  action  against 
a  woman  for  criminal  conversation  with  her  husband.18  To  entitle 
a  wife  to  maintain  an  action  against  one  who  has  intercourse  with 
her  husband,  she  must  show  something  more  than  the  mere  fact  of 
intercourse.  She  must  show  an  enticing  away,  or  alienation  of  the 
affection  of,  her  husband.  A  husband  can  maintain  an  action  for 
criminal  conversation  against  one  who  commits  a  rape  upon  his 
wife.  Assuming  the  possibility  of  a  woman  compelling  a  man, 
against  his  will,  to  have  intercourse  with  her,  it  would  hardly  be 
contended  that  this  alone  would  give  the  man's  wife  a  right  of  ac- 
tion. 

On  the  other  hand,  in  Dodge  v.  Rush,19  the  court,  holding  that 
the  right  of  action  existed,  said:  "While  the  injurious  consequenc- 
es of  a  wife's  adultery  may  be  more  far  reaching,  because  of  proba- 
ble difficulties  and  embarrassments  in  respect  of  the  legitimacy  of 
children,  her  conjugal  rights  are  in  principle  the  same,  substantial- 
ly, as  his.  Whatever  the  ancient  doctrine  may  have  been,  modern 
morals  and  law  recognize  the  equal  obligation  and  right  of  husband 
and  wife."  20 

is  See  Kroessin  v.  Keller,  60  Minn.  372,  62  N.  W.  438,  27  L.  R.  A.  685, 
51  Am.  St.  Rep.  533 ;  Doe  v.  Roe,  82  Me.  503,  20  Atl.  83,  8  L.  R.  A.  833,  17 
Am.  St.  Rep.  499. 

i»28  App.  D.  C.  149,  8  Ann.  Cas.  671. 

20  In  view  of  Married  Women's  Act  of  1894,  empowering  the  wife  to  sue 
for  the  protection  of  her  rights,  without  the  husband's  consent,  the  wife 
has  right  of  action  for  criminal  conversation.  Turner  v.  Heavrin,  182  Ky.  65, 
206  S.  W.  23,  4  A.  L.  R.  562. 


124      BIGHTS  IN  PROPERTY  AS  AFFECTED  BY  COVERTURE    (Ch.  $ 

CHAPTER  III 

RIGHTS   IN   PROPERTY  AS  AFFECTED  BY   OOVERTUSE 

i 

48.  Wife's  Earnings. 

49.  Wife's  Personalty  in  Possession. 
50-51.    Wife's  Choses  in  Action. 

52.  Administration  of  Wife's  Estate, 

r,:;.  Wife's   Chattels  Real. 

54.  Wife's   Estates   of   Inheritance — Curtesy. 

55.  Wife's  Estates  for  Life. 

56-57.  Modification   of   Common-law    Rules. 

58.  Wife's  Rights  in  Husband's  Property — Dower  and  Thirds. 

59.  Estates  by  the  Entirety. 

60.  Community  Property. 

As  has  already  been  stated,  the  effect  of  marriage,  at  common 
law,  is  to  suspend  the  legal  existence  of  the  wife,  for  most  purposes, 
during  coverture,  and  merge  it  in  that  of  the  husband.  Upon  this 
principle  depend  many  of  the  rules  relating  to  property  and  prop- 
erty rights  owned  or  acquired  by  the  wife.  Of  course  the  husband's 
legal  existence  is  not  affected  by  marriage,  and,  therefore,  property 
and  property  rights,  owned  or  acquired  by  him,  are  not  during  his 
life  affected  by  the  marriage,  though  certain  rights  therein  are  giv- 
en the  wife  on  Ms  death,  and  in  some  states  by  statute  the  doctrine 
of  community  property  has  been  adopted  from  the  civil  law.  As 
will  appear,  however,  in  this  and  subsequent  chapters,  the  common- 
law  rules  respecting  the  rights  of  the  wife  have  been  materially 
modified  by  statute,  so  that  her  rights  and  powers  are  in  many 
states  equal  to  those  of  the  husband. 

WIFE'S  EARNINGS 

48.  At  common  law  the  husband  is  entitled  absolutely  to  his  wife's 
earnings,  but  under  modern  statutes  she  is  generally  en- 
titled toxearnings  derived  from  services  apart  from  the 
household  or  business  of  the  husband. 

At  common  law,  the  husband  is  entitled  to  the  earnings  of  his 
wife.  He  takes  all  the  proceeds  of  her  industry,  whether  it  is  in 


§  48)  WIFE'S  EARNINGS  125 

the  form  of  money  paid  her,  or  other  property.1  The  rule  not  only 
applies  to  earnings  which  have  actually  been  received  by  him  or  by 
her,  but  it  also  applies  to  earnings  which  are  due,  unless  there  is 
an  express  promise  to  the  wife.  The  husband  alone  is  entitled  to 
receive  such  earnings,  and  he  must  sue  therefor  in  his  own  name.2 
In  case  of  his  death  the  action  cannot  be  maintained  by  the  wife, 
as  she  has  never  been  entitled  to  the  earnings,  but  must  be  brought 
by  the  personal  representatives  of  the  husband.8  The  rules  are 
different  if  the  wife  can  show  an  express  promise  to  her  by  the 
debtor.  In  such  a  case  an  action  to  recover  the  earnings  may  be 
maintained  by  the  husband  and  wife,4  or  by  the  wife  alone  after 
the  death  of  the  husband.5 

It  follows  from  this  doctrine  that  the  husband  only  can  release 
the  debtor  from  liability  for  the  wife's  earnings.  The  debtor  can- 
not discharge  his  liability  by  paying  the  wife,  and  taking  her  sepa- 
rate receipt,  unless  the  payment  has  been  authorized  by  the  hus- 
band.6 As  will  be  seen  in  another  place,  the  husband  may  appoint 

1  Offley  v.  Clay,  2  Man.  &  G.  172 ;   Buckley  v.  Collier,  1  Salk.  114 ;   Russell 
v.  Brooks,  7  Pick.   (Mass.)  65;    McDavid  v.  Adams,  77  111.  155;    Schwartz  v. 
Saunders,  46  111.  18;    Bear  v.  Hays,  36  111.  280;    Prescott  v.  Brown,  23  Me. 
305,  39  Am.  Dec.  623 ;    Seitz  v.  Mitchell,  94  U.  S.  580,  24  L.  Ed.  179 ;    Yopst 
V.  Topst,  51  Ind.  61 ;   Turtle  v.  Muncy,  2  J.  J.  Marsh.  (Ky.)  82;   Armstrong  v. 
Armstrong.  32  Miss.  279;    Skillman  v.   Skillman,  15  N.  J.  Eq.  478,  82  Am. 
Dec.  279 ;    Bucher  v.  Ream,  68  Pa.  421  ;   Reynolds  v.  Robinson,  64  N.  Y.  589 ; 
Carleton  v.  Rivers,  54  Ala.  467;    Hawkins  v.  Railroad  Co.,  119  Mass.  596,  20 
Am.  Rep.  353 ;   Bwell,  Lead.  Cas.  355,  and  cases  there  cited.    "By  the  common 
law,  the  earnings  of  the  wife,  the  product  of  her  skill  and  labor,  belong  to 
the  husband.     They  do  not  become  the  property  of  the  wife,  even  in  equity, 
without  a  clear,  express,  irrevocable  gift,  or  some  distinct  affirmative  acr 
of  the  husband,  divesting  himself  of  them  or  setting  them  apart  for  her 
separate  use."    Skillman  v.  Skillman,  15  N.  J.  Eq.  478,  82  Am.  Dec.  279.    And 
see  McLemore  v.  Pinkston,  31  Ala.  266,  68  Am.  Dec.  169.    The  rule,  of  course, 
applies  to  the  joint  earnings  of  husband  and  wife,  as  where  they  work  togeth- 
er in  carrying  on  a  boarding  house,  hotel,  or  any  other  business.     Shaeffer  v. 
Sheppard,  54  Ala.  244 ;    Bowden  v.  Gray,  49  Miss.  547 ;    Reynolds  v.  Robin- 
son, 64  N.  Y.  589 ;   Carleton  v.  Rivers,  54  Ala.  467.    Property  purchased  by  the 
wife  with  the  proceeds  of  her  labor  is  within  the  rule.    Hawkins  v.  Railroad 
Co.,  119  Mass.  596,  20  Am.  Rep.  353;    Carleton  v.  Rivers,  54  Ala.  467. 

2  Buckley  v.  Collier,  1  Salk.  114;   Offley  v.  Clay,  2  Man.  &  G.  172;   Russell 
v.  Brooks,  7  Pick.  (Mass.)  65 ;   McDavid  v.  Adams,  77  111.  155 ;   Gould  v.  Carl- 
ton,  55  Me.  511. 

a  Prescott  v.  Brown,  23  Me.  305,  39  Am.  Dec.  623;  Buckley  v.  Collier,  1 
Salk.  114. 

4  Prat  v.  Taylor,  Cro.  Eliz.  61 ;  Brashford  v.  Buckingham,  Cro.  Jac.  77, 
205;  Weller  v.  Baker,  2  Wlls.  424. 

G  Prescott  v.  Brown,  23  Me.  305,  39  Am.  Dec.  623. 

«  Offley  v.  Clay,  2  Man.  &  G.  172;    Russell  v.  Brooks, -7  Pick.  (Mass.)  65. 


126      BIGHTS  IN  PROPERTY  AS  AFFECTED  BY  COVERTURE    (Ch.  3 

his  wife  his  agent  to  receive  her  earnings;  and  subject  to  restric- 
tions as  to  creditors,  he  may  give  them  to  her. 

Effect  of  Modern  Statutes 

The  right  of  the  husband  to  the  services  and  earnings  of  the 
wife  is  not  changed  by  the  general  statutes  relating  to  the  property 
of  married  women.7  In  many  states,  however,  the  statute  expressly 
provides  that  the  earnings  of  the  wife  shall  be  her  separate  prop- 
erty, and  under  such  statutes  earnings  derived  from  services  other 
than  those  rendered  in  the  household  or  business  of  the  husband 
belong  to  her.* 


i  Merrill  v.  Smith,  37  Me.  394 ;  Lee  v.  Savannah  Guano  Co.,  99  Ga.  572,  27 
S.  E.  159,  59  Am.  St.  Rep.  243;  Blaechinska  v.  Howard  Mission  &  Home 
for  Little  Wanderers,  130  N.  Y.  497,  29  N.  E.  755,  15  L,  R.  A.  215,  Cooley 
Cas.  Persons  and  Domestic  Relations,  57 ;  MeClintic  v.  McClintic,  111  Iowa, 
615,  82  N.  W.  1017. 

«  Code  Ala.  1907,  §  4487 ;  Kirby's  Dig.  Ark.  1904,  §  5214 ;  Burns'  Ann.  St 
Ind.  1908,  §  7867;  Rev.  St.  Me.  1903,  c.  63,  §  3;  Rev.  Laws  Minn.  1905,  § 
3606;  Larkin  v.  Woosley,  109  Ala.  258,  19  South.  520;  Stevens  v.  Cunning- 
ham, 181  N.  Y.  454,  74  N.  E.  434;  Blaechinska  v.  Howard  Mission  &  Home 
for  Little  Wanderers,  130  N.  Y.  497,  29  N.  E.  755,  15  L.  R.  A.  215,  Cooley  Cas. 
Persons  and  Domestic  Relations,  57 ;  Brooks  v.  Schwerin,  54  N.  Y.  343 ; 
Nuding  v.  Urich,  169  Pa.  289.  32  Atl.  409,  Cooley  Cas.  Persons  and)  Domestic 
Relations,  61;  Grant  v.  Sutton,  90  Va.  771,  19  S.  E.  784;  Emerson-Talcott 
Co.  v.  Knapp,  90  Wis.  34,  62  N.  W.  945 ;  Turner  v.  Davenport,  63-  N.  J.  Eq. 
288,  49  Atl.  463.  See,  also,  Elliott  v.  Hawley,  34  Wash.  585,  76  Pac.  93,  101 
Am.  St.  Rep.  1016 ;  Garver  v.  Thoman,  15  Ariz.  38,  135  Pac.  724  (commissions 
as  agent) ;  Elliott  v.  Atkinson,  45  Ind.  App.  290,  90  N.  E.  779  (keeping  board- 
ers) ;  In  re  Lewis'  Estate,  156  Pa.  337,  27  Atl.  35  (keeping  boarders) ;  Perry 
v.  Blumenthal,  119  App.  Div.  663,  104  N.  Y.  Supp.  127  (keeping  boarders). 
But  see  Cory  v.  Cook,  24  R.  I.  421,  53  Atl.  315,  holding  that  where  board  is 
furnished  in  a  household,  it  is  to  be  presumed,  in  the  absence  of  agreement 
to  the  contrary,  or  evidence  that  the  wife  furnished  it  from  her  separate 
estate,  that  the  husband  is  entitled  to  compensation  therefor.  But  even 
where  the  husband  keeps  a  house  of  entertainment,  so  that  the  services  of  the 
wife  in  connection  with  the  keeping  of  boarders  would  belong  to  the  husband, 
she  is,  nevertheless,  entitled  to  compensation  for  extra  labor  performed  for 
such  boarders,  such,  as  making,  mending,  or  washing  clothes.  Vincent  v. 
Ireland,  2  Pennewill  (Del.)  580,  49  Atl.  172.  In  Turner  v.  Davenport,  63  N. 
J.  Eq.  288,  49  Atl.  463,  it  was  held  that  the  wife  could  recover  for  services 
rendered  to  a  partnership  of  which  her  husband  was  a  member.  And  see 
Baker  v.  Jewel  Tea  Co.,  152  Iowa,  72,  131  N.  W.  674,  where  wife  rendered 
services  for  a  corporation.  Under  the  statutes  of  California  (Civ.  Code,  §§ 
158,  159),  relating  to  the  rights  of  married  women,  a  wife  may  contract  with 
her  husband  to  perform  services  for  him  outside  the  family  relation  for 
wages  which  are  to  be  her  separate  property.  Moore  v.  Crandall,  205  Fed. 
689,  124  C.  C.  A.  11.  Without  an  agreement  to  the  contrary,  the  earnings 
and  profits  of  the  labor  of  a  wife  are  her  separate  property,  under  Rev. 
Laws,  c.  153,  I  4,  Briggs  v.  Sanford,  219  Mass.  572,  107  N.  E.  436. 


§  48)  -  WIFE'S  EARNINGS  127 

As  to  those  services  rendered  in  the  household  or  the  business 
of  the  husband,  the  earnings,  in  the  absence  of  a  special  agreement, 
belong  to  the  husband,9  and  in  some  states  it  is  held  that,  unless 
the  statute  gives  the  wife  the  right  to  contract  as  a  feme  sole  with 
any  person,  including  her  husband,  she  cannot,  even  under  a  con- 
tract with  the  husband,  acquire  the  right  to  her  earnings  derived 
from  services  rendered  him  in  his  business,10  though  as  to  services 
rendered  independently  the  earnings  are  her  property.11 
Wife  as  Sole  Trader 

As  will  presently  be  seen,  the  wife  may,  by  the  aid  of  a  court  of 
equity,  under  an  agreement  with  her  husband,  carry  on  a  separate 

»Coleman  v.  Burr,  93  N.  Y.  17,  45  Am.  Rep.  160;  Brooks  v.  Schwerin,  54 
N.  Y.  343 ;  Standen  v.  Pennsylvania  R.  Co.,  214  Pa.  189,  63  Atl.  467,  6  Ann. 
Gas.  408;  Kennedy  v.  Swisher,  34  Ind.  App.  676,  73  N.  E.  724;  Snickles  v. 
City  of  St.  Joseph,  155  Mo.  App.  308,  136  S.  W.  752 ;  Rockwell  v.  Robinson's 
Estate,  158  Wis.  319,  148  N.  W.  868;  Larisa  v.  Tiffany  (R,  I.)  105  Atl.  739; 
Monahan  v.  Monahan,  77  Vt.  133,  59  Atl.  169,  70  L.  R.  A.  935.  It  is,  how- 
ever, held  in  some  states  that  if  the  parties  so  agree  the  wife  may  be  enti- 
tled to  her  earnings  derived  from  her  services  in  the  household  or  her  hus- 
band's business.  Nuding  v.  Urich,  169  Pa.  289,  32  Atl.  409,  Cooley  Cas.  Per- 
sons and  Domestic  Relations,  61;  Bodkin  v.  Kerr,  97  Minn.  301,  107  N.  W. 
137 ;  Vansickle  v.  Wells,  Fargo  &  Co.  (C.  C.)  105  Fed.  16. 

10  Blaechinska  v.  Howard  Mission  &  Home  for  Little  Wanderers,  130  N. 
Y.  497,  29  ;N.  E.  755,  15  L.  R.  A.  215,  Cooley  Cas.  Persons  and  Domestic  Re- 
lations, 57  (under  Laws  1884,  p.  465,  c.  381).     See,  also,   Lee  v.   Savannah 
Guano  Co.,  99)  Ga.  572,  27  S.  E.  159,  59  Am.  St.  Rep.  243.     But  see  Turner 
v.  Davenport,  63  N.  J.  Eq.  288,  49  Atl.  463,  holding  that  a  married  woman 
may  contract  with  a  firm  in  which  her  husband  is  a  member,  and  recover  In 
equity  for  wages  for  her  personal  services  under  such  contract.    An  express 
contract  between  a  husband  and  wife  that  she  should  receive  reasonable 
compensation  for  extra  and  unusual  services  rendered  outside  her  domestic 
duties  is  valid.    In  re  Cormick's  Estate,  100  Neb.  669,  160  N.  W.  989,  L.  R.  A. 
1917D,  265. 

11  Kennedy  v.  Swisher,  34  Ind.  App.  676,  73  N.  E.  724;   Hamilton  v.  Ham- 
ilton's Estate,  26  Ind.  App.  114,  59  N.  E.  344 ;   Turner  v.  Davenport,  63  N.  J. 
Eq.  288,  49  Atl.  463.    Where  circumstances  forced  a  wife  to  become  the  ex- 
ecutive and  working  head  of  a  family,  and  the  husband  for  years  recognized 
her  right  to  earn  and  disburse  money,  he  himself  doing  business  with  her 
as  with  a  stranger,  and  she  has  sought  to  acquire  for  their  sons  a  business  in 
which  they  could  earn  their  living  and  has  exercised  good  judgment  in  seeing 
to  it  that  the  husband  did  not  interfere  in  the  management  thereof,  he  is  not 
entitled  to  the  ownership  of  the  earnings  of  the  wife.    Pearll  v.  Pearll  Adver- 
tising Co.,  162  Mich.  439,  127  N.  W.  264.    A  wife  may,  where  her  husband  con- 
sents, maintain  a  suit  to  recover  her  earnings.    Central  of  Georgia  Ry.  Co.  v. 
Cheney,  20  Ga.  App.  393,  93  S.  E.  42.    Under  Code  Pub.  Civ.  Laws,  art.  45,  §  5, 
empowering  married  women  to  engage  in  any  business  and  to  contract  and  sue 
'as  if  unmarried,  a  married  woman  may  in  her  own  name  instead  of  that  of  her 
husband  maintain  a  suit  against  an  executrix  to  recover  for  personal  serv- 


128      EIGHTS  IN  PROPERTY  AS  AFFECTED  BY  COVERTURE    (Ch.  3 

trade  or  business  for  her  own  use  and  benefit,  in  which  case,  in 
equity,  she  will  be  entitled  to  hold  the  profits  therefrom  to  her 
separate  use.12 

• 

WIFE'S  PERSONALTY  IN  POSSESSION 

49.  At  common  law,  the  wife's  personalty  in  possession  vests  exclu- 
sively in  her  husband,  without  any  act  on  his  part,  and  on 
his  death  passes  to  his  personal  representatives.  This  is 
true  as  to  personalty  «owned  by  her  at  the  time  of  the 
marriage,  and  personalty  acquired  during  coverture,  and 
as  to  personalty  in  her  actual  possession,  and  personalty 
in  the  actual  possession  of  some  third  person  not  holding 
adversely. 

EXCEPTIONS— The  rule  does  not  apply  to  the  wife's  para- 
phernalia; that  is,  such  articles  of  wearing  apparel,  per- 
sonal ornament,  or  convenience  as  are  suitable  to  her  rank 
and  condition.  These  belong  to  the  husband,  like  other 
personalty  in  possession;  but,  if  undisposed  of  by  him, 
they  belong  to  the  wife  on  his  death. 

At  common  law,  all  the  personal  property  of  a  woman,  including 
money,  and  goods  and  chattels  of  every  description,  which  she  has 
in  possession  at  the  time  of  her  marriage,  vests  absolutely  in  her 
husband,  and  becomes  as  much  his  as  if  it  had  been  originally 
acquired  by  him.  He  may.  dispose  of  it  as  he  sees  fit;  it  may  be 
seized  by  his  creditors  and  subjected  to  the  payment  of  his  debts; 
and  on  his  death  it  will  go  to  his  personal  representatives,  even 
though  the  wife  may  be  the  survivor.18  The  same  rule  applies  to 

ices  rendered  decedent,  with .  her  husband's  consent,  for  a  consideration 
passing  to  her  personally.  Neudecker  v.  Leister,  132  Md.  571,  104  All.  47. 

12  Post,  p.  162. 

is2  Kent.  Comm.  143;  Co.  Litt.  351b;  2  Bl.  Comm.  434;  Lamphir  v. 
Creed,  8  Ves.  599 ;  Ellington  v.  Harris,  127  Ga.  85,  56  S.  E.  134,  119  Am.  St 
Hep.  320 ;  Legg  v.  Legg,  8  Mass.  99 ;  Jordan  v.  Jordan,  52  Me.  320 ,  Cooley 
Cas.  Persons  and  Domestic  Relations,  63;  Crosby  v.  Otis,  32  Me.  256;  Carle- 
ton  v.  Lovejoy,  54  Me.  445;  Hawkin's  Adm'r  v.  Craig,  6  (T.  B.  Mon.  (Ky.) 
254;  Morgan  v.  Bank,  14  Conn.  99;  Tune  v.  Cooper,  4  Sneed  (Term.)  296; 
Snyder  v.  Jett,  138  Tenn.  211,  197  S.  W.  488;  Otto  F.  Stifel's  Union  Brew- 
ing Co.  v.  Saxy,  273  Mo.  159,  201  S.  W.  67,  L.  R,  A.  191SC,  1009;  Ellington 
v.  Harris,  127  Ga.  85,  56  S.  E.  134,  119  Am.  St  Rep.  320;  Hoskins  v.  Miller,  13 
N.  C.  360;  Caffey  v.  Kelly,  45  N.  C.  48;  Cropsey  v.  McKinney,  30  BarDi 
(N.  Y.)  47;  Hyde  v.  Stone,  3  Cow.  (X.  Y.)  230,  18  Am.  Dec,  501;  Colbert  v. 


§  49)  WIFE'S  PERSONALTY  IN  POSSESSION  129 

personalty  acquired  by  the  wife  during  coverture,  whether  by  gift, 
bequest,  purchase,  or  by  her  own  labor.14  And  it  applies  to  money 
received  as  the  proceeds  of  her  real  estate,  either  as  rent  or  as  pur- 
chase money  on  a  sale  thereof.15  If  the  wife's  interest  was  that  of 
a  tenant  in  common,  the  husband  assumes  the  same  relation  in 
her  place.16  Personalty  in  possession,  though  settled  to  the  sepa- 
rate use  of  the  wife,  passes  to  him  personally,  on  her  death,  jure 
mariti;  for  a  wife's  separate  estate  lasts  only  during  coverture.17 
Personal  property  which  is  constructively  in  the  wife's  posses- 
sion vests  in  the  husband  equally  with  that  in  her  actual  posses- 
sion. In  legal  contemplation,  personalty  of  the  wife,  in  the  hands 
of  another  person,  whose  possession  is  not  adverse,  is  in  her  pos- 
session. Thus  a  chattel  in  the  hands  of  another  under  a  contract 
for  hire  is  in  the  wife's  possession,  since  the  possession  of  a  bailee 
is  that  of  the  bailor.18  Likewise  the  possession  of  her  agent  is  that 
of  the  wife ; 19  the  possession  of  a  guardian  is  that  of  the  ward ; 20 
the  possession  of  a  donor  retaining  possession  for  life  is  that  of  the 

Daniel,  32  Ala.  314,  327;  Rixey's  Adm'r  v.  Deitrick,  85  Va.  42,  6  S.  E.  615. 
But  the  husband  may  waive  his  right  and  permit  the  wife  to  own  and 
control  such  personalty  as  of  her  separate  estate.  Boldrick  v.  Mills,  96  S. 
W.  524,  29  Ky.  Law  Rep.  852.  Mere  admissions  by  a  husband  who  has  pur- 
chased realty  with  personalty  belonging  originally  to  his  wife,  but  which 
has  vested  in  him  by  his  marriage,  thati  he  holds  the  land  for  the  benefit 
of  the  heirs  of  his  wife,  will  not  divest  the  title  of  his  heirs,  unless  there 
has  been  during  the  lifetime  of!  the  wife  a  gift  to  her  of  the  chattels,  title 
to  which  the  husband  acquired  by  the  marriage,  or  such  a  gift  of  the  pro- 
ceeds of  the  sale  of  such  chattels  before  the;  same  were  invested  in  land. 
Ellington  v.  Harris,  127  Ga.  85,  56  S.  E,  134,  119  Am.  St  Rep.  320. 

i*  Newlands  v.  Paynter,  4  Mylne  &  C.  408 ;  Game  v.  Brice,  7  Mees.  &  W. 
183;  Leslie  v.  Bell,  73  Ark.  338,  84  S.  W.  491;  Shirley  v.  Shirley,  9  Paige 
(N.  Y.)  363;  Vreeland's  Ex'rs  v.  Ryno's  Ex'r,  26  N.  J.  Eq.  160;  Kensington 
v.  Dollond,  2  Mylne  &  K.  184 ;  Ewing  v.  Helm,  2  Tenn.  Ch.  368.  As  to  earn- 
ings of  the  wife,  see  ante,  p.  124. 

lepluinmer  v.  Jarman,  44  Md.  632;  Lichtenberger  v.  Graham,  50  Ind.  288; 
Hamlin  v.  Jones,  20  Wis.  536 ;  Crosby  v.  Otis,  32  Me.  256 ;  Martin  v.  Martin, 
1  N.  Y.  473;  Sheriff  of  Fayette  v.  Buckner,  1  Litt.  (Ky.)  126;  Thomas  v. 
Chicago,  55  111.  403. 

10  Hyde  v.  Stone,  9  Cow.  (N.  Y.)  230,  18  Am.  Dec.  501;  Hopper  v.  Mc- 
Whorter,  18  Ala.  229. 

172  Macq.  Husb.  &  W.  288;  Molony  v.  Kennedy,  10  Sim.  254;  Brown's 
Adm'rs  v.  Brown's  Adm'rs,  6  Humph.  (Tenn.)  127. 

isWhitaker  v.  Whitaker,  12  N.  C.  310;  Magee  v.  Toland,  8  Port.  (Ala.) 
36;  Morrow  v.  Whitesides'  Ex'r,  10  B.  Mon.  (Ky.)  411;  Armstrong  v.  Si- 
monton's  Adm'r,  6  N.  C.  351 ;  Dade  v.  Alexander,  1  Wash.  (Va.)  30. 

i»  Crosby  v.  Otis,  32  Me.  256. 

20  Magee  v.  Toland,  S  Port.  (Ala.)  36 ;  Davis  v.  Rhame,  1  McCord,  Eq.  (S. 
C.)  191 ;  Sallee  v.  Arnold,  32  Mo.  532,  82  Am.  Dec.  144 ;  Miller  v.  Blackburn, 
TIFF.P.&  D.REL.(30  ED.)— 9 


130  RIGHTS  IN   PROPERTY   AS  AFFECTED  BY  COVERTURE  (Ch. 3 

donee; 21  and  so  generally  chattels  in  the  hands  of  another,  not  un- 
der a  hostile  claim,  are  in  the  possession  of  the  owner.22  In  Ala- 
bama it  has  been  held  that  the  possession  of  the  wife  must  be  ac- 
tual, and  not  constructive ; 28  but  the  great  weight  of  authority  is 
against  such  a  view. 

When  the  property  is  in  the  hands  of  another,  whose  relations  to 
the  wife  are  those  of  a  debtor,  and  not  a  bailee  or  servant,  his  pos- 
session is  not  the  wife's  possession.  She  has  only  a  right  to  posses- 
sion or  a  chose  in  action.  For  instance,  money  in  bank  is  the  prop- 
erty of  the  bank,  and  the  wife  has  only  a  chose  in  action,  the  rela- 
tion being  purely  that  of  debtor  and  creditor.24  So  where  a  person 
received  money  from  another  to  be  appropriated  to  a  married  wo- 
man, the  court  held  that,  nothing  having  been  done  to  vest  any 
property  in  any  coin  as  a  chattel,  the  money  did  not  vest  in  the 
husband,  but  remained  a  chose  in  action  in  the  wife.25  The  rules 
relating  to  the  wife's  choses  in  action  are  explained  in  a  subsequent 
section. 

The  husband's  right  to  his  wife's  personalty  in  possession  is  the 
result  of  the  marriage,  and  depends  upon  nothing  else.  It  lasts  as 
long  as  the  marriage  relation  lasts.  He  does  not  lose  the  right  by 
a  divorce  a  mensa  et  thoro,  or  judicial  separation,26  though  it  is 
•otherwise  in  the  case  of  a  divorce  a  vinculo  matrimonii,  for  that 
puts  an  end  to  the  relation.  The  husband  does  not  lose  this  right 
even  by  deserting  his  wife  and  living  in  adultery." 

Wife's  Paraphernalia 

The  wife's  paraphernalia,  being  such  articles  of  wearing  apparel, 
personal  ornament,  or  convenience  as  are  suitable  to  her  rank,28 
which  she  had  at  the  time  of  marriage,  or  which  are  given  to  her  by 

14  Ind.  62;  Daniel  v.  Daniel.  2  Rich.  Eq.  (S.  C.)  118,  44  Am.  Dec.  244;  Mc- 
Daniel  v.  WMtman,  16  Ala.  343;  Chambers  v.  Perry,  17  Ala.  726;  Davis' 
Appeal,  60  Pa.  118. 

21  Banks'  Adm'rs  v.   Marksberry,   3   Litt.    (Ky.)   275. 

22  Wallace  v.  Burden,  17  Tex.  467;   Caffey  v.  Kelly,  45  N.  O.  48;   Brown  v. 
Pitz,  13  N.  H.  283;    Sausey  v.  Gardner,  1  Hill  (S.  C.)  391. 

2  s  Mason  v.  McNeill's  Ex'rs,  23  Ala.  214;    Hair  v.  Avery,  28  Ala.  273. 

2*  Carr  v.  Carr,  1  Mer.  543,  note. 

26  Fleet  v.  Perrins,  L.  R.  3  Q.  B.  536;    Id.,  L.  R.  4  Q.  B.  500. 

2«  Glover  v.  Proprietors  of  Drury  Lane,  2  Chit  117;  Wkshburn  v.  Hale, 
10  Pick.  (Mass.)  429-;  Prescott  v.  Brown,  23  Me.  305,  39  Am.  Dec.  623. 

2t  Vreeland's  Ex'rs  v.  Ryno's  Ex'r,  26  N.  J.  Eq.  160;  Russell  v.  Brooks,  7 
Pick.  (Mass.)  65 ;  Armstrong  v.  Armstrong,  32  Miss.  279 ;  Turtle  v.  Muncy,  2 
J.  J.  Marsh.  (Ky.)  82. 

282  Bl.  Comm.  436. 


§§  50-51)  WIFE'S  CHOSES  IN  ACTION  13 1 

her  husband  during  coverture,  follow  a  different  rule.  Like  other 
personalty  in  possession,  they  belong  to  the  husband;  but,  if  not 
disposed  of  by  him  during  his  life,  they  become  her  absolute  prop- 
erty,29 subject,  however,  to  the  claims  of  the  husband's  creditors.30 
In  most  states  there  are  statutes  making  similar  provisions  for  the 
widow. 

. 


WIFE'S  CHOSES  IN  ACTION 

,.\i 

50.  A  husband  is  entitled  to  his  wife's  choses  in  action  if  he  re- 

duces them  to  possession  during  coverture,  but  not  other- 
wise. To  reduce  them  to  possession  he  must  exert  some 
act  of  ownership  over  them,  with  the  intention  of  con- 
verting them  to  his  own  use. 

51.  EQUITY  TO  A  SETTLEMENT— If  necessary  to  ask  the  aid 

of  a  court  of  equity  to  reduce  the  wife's  choses  in  action 
to  possession,  the  husband  must  make  suitable  provision 
for  the  maintenance  of  the  wife  and  children. 

While  the  wife's  personal  property  in  possession  vests  absolutely 
in  the  husband  by  virtue  of  the  marriage  alone,  without  any  act  on 
his  part,  it  is  otherwise  with  her  choses  in  action.  These  do  not 
vest  in  him  unless  he  does  some  act  during  the  coverture  by  which 
he  appropriates  them  to  himself,  or,  as  it  is  expressed,  reduces  thern 
to  possession.31  If  he  fails  to  reduce  them  to  possession  during 
coverture,  and  dies  before  his  wife  or  is  divorced,  they  remain  her 
property,  and  pass  to  her  representatives.32  •  If  she  dies  first,  and 

29  Tipping  v.  Tipping,  1  P.  Wms.  730;  Schouler,  Husb.  &  W.  §  431.  The 
common-law  rule  was  not  changed  by  the  New  Jersey  statute  (Gen.  St.  p. 
2012)  Farrow  v.  Farrow,  72  N.  J.  Eq.  421,  65  Atl.  1009,  11  L.  R.  A.  (N.  S.) 
389,  129  Am.  St.  Rep.  714.  16  Ann.  Gas.  507,  As  to  a  different  rule  in  the 
Philippine  Islands,  see  Castillo  v.  Castillo,  17  Phil.  Rep.  517. 

so  Howard  v.  Menifee,  5  Ark.  668. 

si  The  choses  in  action  of  a  wife  belonged  to  the  husband  at  common  law 
only  after  he  had  reduced  them  to  possession.  Smith  v.  Farmers'  &  Mer- 
chants' Nat.  Bank,  57  Or.  82,  110  Pac.  410;  Williford  v.  Phelan,  120  Tenn. 
589,  113  S.  W.  365. 

s  2  Co.  Litt  351b;  2  Kent.  Comm.  135;  Richards  v.  Richards,  2  Barn.  & 
Adol.  447;  Langham  v.  Nenny,  3  Ves.  467;  Scawen  v.  Blunt,  7  Ves.  294; 
Wells  v.  Tyler,  25  N.  H.  340;  Tritt's  Adm'r  v.  Colwell's  Adm'r,  31  Pa.  228; 
Legg  v.  Legg,  8  Mass.  99;  Needles  v.  Needles,  7  Ohio  St.  432,  70  Am.  Dec. 
85;  Burleigh  v.  Coffin,  22  N.  H.  118,  53  Am.  Dec.  236;  In  re  Kintzinger's 
Estate,  2  Ashm.  (Pa.)  455 ;  Poindexter  v.  Blackburn,  36  N.  C.  286 ;  Keagy  v. 
Trout,  85  Va.  390,  7  S.  E,  329.  In  another  place  it  will  be  seen  that  by 


132       RIGHTS  IN  x  PROPERTY  AS  AFFECTED  BY  COVERTURE    (Ch.  3 

before  they  have  been  reduced  to  possession,  they  pass  to  her  rep- 
resentatives.83 If  they  are  reduced  to  possession  during  cover- 
ture, they  become,  in  most  cases,  absolutely  his.34  The  rule  ap- 
plies to  choses  in  action  owned  by  the  wife  at  the  time  of  the  mar- 
riage, as  well  as  to  those  acquired  during  coverture.35 

What  are  Choses  in  Action 

A  chose  in  action  has  been  defined  as  a  right  to  be  asserted  by 
action  at  law.  But  the  term  may  include  a  right  to  be  asserted  in 
equity.86  It  includes  all  claims  arising  from  contract,  duty,  or 
wrong,  to  enforce  which  resort  may  be  had  either  to  an  action  at 
law  or  to  a  suit  in  equity.87  The  term  has  never  been  satisfactorily 
defined  by  the  courts;  but  since  all  personalty  is  either  in  posses- 
sion or  a  chose  in  action,  there  is  generally  little  difficulty  in  deter- 
mining, in  any  particular  case,  whether  the  personalty  in  question  is 
a  chose  in  action.  Stocks  and  bonds,88  bills  of  exchange  and  prom- 
statute,  from  a  very  early  period,  the  husband  has  been  entitled  to  adminis- 
ter on  his  wife's  estate,  and  to  recover  the  same  for  his  own  use,  acting  as 
ndmiuistrator,  subject,  however,  to  the  payment  of  her  debts  contracted 
before  the  marriage.  In  effect,  therefore,  he  does  acquire  the  right  to  his 
wife's  choses  in  action,  though  not  reduced  to  possession  in  her  lifetime ;  but 
he  takes  the  benefit  of  them  burdened  with  liability  for  her  debts  dum  sola. 
Post,  p. -183. 

as  Fleet  v.  Perrins,  L.  R.  3  Q.  B.  536;  Walker's  Adm'r  v.  Walker's  Adm'r, 
41  Ala.  353;  Needles  v.  Needles,  7  Ohio  St.  432,  70  Am.  Dec.  S5;  Burleigh 
v.  Coffin,  22  N.  H.  118,  53  Am.  Dec.  236 ;  Tritt's  Adm'r  v.  Colwell's  Adm'r,  31 
Pa.  228. 

8*2  Kent.  Comm.  135;  Little  v.  Marsh,  37  N.  C.  18;  'Tritt's  Adm'r  v. 
Colwell's  Adm'r,  31  Pa.  228.  Of  course,  they  then  become  personalty  in  pos- 
session, and  subject  to  the  rules  laid  down  in  the  preceding  section.  Ante, 
p.  128.  In  case  of  an  infant  husband,  the  rule  is  the  same,  though  he  may 
die  before  reaching  majority.  Ware  v.  Ware's  Adm'r,  28  Grat.  (Va.)  670. 
At  common  law  and  prior  to  the  passage  of  the  statute  relating  to  the  prop- 
erty of  married  women,  a  wife's  property  was  not  her  separate  estate,  and 
her  personal  property,  when  reduced  to  possssion  by  her  husband,  became 
absolutely  his.  Miller  v.  Keown,  176  Ky.  117,  195  S.  W.  430;  Copeland  v. 
Jordan,  147  Ga.  601,  95  S.  E.  13;  Whiteman  v.  Whiteman  (Del.  Super.)  105 
Atl.  787. 

ss  Bond  v.  Conway,  11  Md.  512 ;  Wilder  v.  Aldrich,  2  R,  I.  518 ;  Lenderman 
v.  Talley,  1  Houst.  (Del.)  523;  Hayward  v.  Hayward,  20  Pick.  (Mass.)  517. 
See,  also,  Arnold  v.  Limeburger,  122  Ga.  72,  49  S.  E.  812.  As  to  the  effect  of 
modern  statutes,  see  Johnson  v.  Johnson's  Committee,  122  Ky.  13,  90  S.  W. 
964,  121  Am.  St.  Rep.  449,  Cooley  Cas.  Persons  and  Domestic  Relations,  66. 

se  Note  58,  infra. 

8*  Schouler,  Husb.  &  W.  §  153. 

as  Brown  v.  Bokee,  53  Md.  155;  Slaymaker  v.  Bank,  10  Pa.  373;  Wells  v. 
Tyler,  25  X.  H.  340,  Cooley  Cas.  Persons  and  Domestic  Relations,  64. 


§§  50-51)  WIFE'S  CHOSES  IN  ACTION  133 

issory  notes,89  and  other  debts  owing  to  the  wife,40  claims  for  dam- 
ages for  personal  injuries,  slander,  or  other  torts  against  the  wife,41 
checks  and  certificates  of  deposit,42  are  all  choses  in  action  within 
this  rule.  Though  there  is  some  authority  to  the  contrary,43  by  the 
great  weight  of  opinion  legacies  and  distributive  shares  are  also 
within  the  rule.44 

Reduction  to  Possession 

To  vest  his  wife's  choses  in  action  in  himself  by  reduction  to  pos- 
session, the  husband  must  exert  some  positive  act  of  dominion  over 
them,  with  the  intention  of  converting  them  to  his  own  use.45  The 
intention  to  take  possession,  without  actually  doing  so,  is  not  suffi- 
cient.46 Nor  is  the  actual  taking  possession  sufficient,  if  there  is  no 
intent  to  convert  to  his  own  use.47  Taking  possession,  however,  is, 

39  Gaters  v.  Madeley,  6  Mees.  &  W.  423;  Hayward  v.'  Hayward,  20  Pick. 
(Mass.)  517;  Phelps  v.  Phelps,  20  Pick.  (Mass.)  556;  Lenderman  v.  Talley,  1 
Houst.  (Del.)  523. 

4°  Clapp  v.  Inhabitants,  10  Pick.  (Mass.)  463,  Cooley  Cas.  Persons  and  Do- 
mestic Relations,  69. 

41  Anderson  v.  Anderson,  11  Bush  (Ky.)  327. 

42Rodgers  v.  Bank,  69  Mo.  560. 

43Holbrook  v.  Waters,  19  Pick.  (Mass.)  354;  Wheeler  v.  Bowen,  20  Pick. 
(Mass.)  563;  Albee  v.  Carpenter,  12  Cush.  (Mass.)  382;  Griswold  v.  Penni- 
man,  2  Conn.  564. 

44  Schouler,  Husb.  &  W.  §  153 ;   2  Kent,  Cbmm.  135 ;    Garforth  v.  Bradley, 
2  Ves.  Sr.  675 ;    Carr  v.  Taylor,  10  Ves.  574 ;    Arnold  v.  Limeburger,  122  Ga. 
72,  49  S.  E.  812,  Cooley  Cas.  Persons  and  Domestic  Relations,  71 ;   Tucker  v. 
Gordon,  5  N.  H.  564;    Schuyler  v.  Hoyle,  5  Johns.  Ch.  (N.  Y.)  196;    Howard 
v.  Bryant,  9  Gray  (Mass.)  239 ;    Probate  Court  v.  Niles,  32  Vt.  775 ;    Smilie's 
Estate,  22  Pa.  130;    Wheeler  v.  Moore,  13  N.  H.  478;    Curry  v.  Fulkinson's 
Ex'rs,  14  Ohio,  100;   Keagy  v.  Trout,  85  Va.  390,  7  S.  E.  329;  Jones  v.  Daven-  . 
port,  44  N.  J.  Eq.  33,  13  Atl.  652 ;    Hooper  v.  Howell,  50  Ga.  165. 

45  Blount  v.  Bestland,  5  Ves.  515;    Baker  v.  Hall,  12  Ves.  497;    Parker  v. 
Lechmere,  12  Ch.  Div.  256;   In  re  Hinds'  Estate,  5  Whart.  (Pa.)  138,  34  Am. 
Dec.  542;    Mayfield  v.  Clifton,  3  Stew.    (Ala.)  375;    Standeford  v.  Devol,  21 
Ind.  404,  83  Am.  Dec.  351 ;    Needles  v.  Needles,  7  Ohio  St.  432,  70  Am.  Dec. 
85 ;   Brown  v.  Bokee,  53  Md.  155 ;   Cox  v.  Scott,  9  Baxt.  (Tenn.)  305 ;   George 
v.  Goldsby,  23  Ala.  326;    Sale  v.  Saunders,  24  Miss.  24,  57  Am.  Dec.  157; 
Moyer's  Appeal,  77  Pa.  482;    Grebill's  Appeal,  87  Pa.  105;  Williams  v.  Sloan, 
75  Va.  137 ;   Arrington  v.  Yarbrough,  54  N.  C.  72 ;   Hooper  v.  Howell,  50  Ga. 
165. 

46  Blount  v.  Bestland,  5  Ves.  515 ;    1  Bright,  Husb.  &  W.  36. 

4  7  Baker  v.  Hall,  12  Ves.  497;  Wall  v.  Tomlinson,  16  Ves.  413;  In  re 
Hinds'  Estate,  5  Whart.  (Pa.)  138,  34  Am.  Dec.  542;  Mayfield  v.  Clifton,  3 
Stew.  (Ala.)  375;  Hall  v.  Young,  37  N.  H.  134;  Standeford  v.  Devol,  21  Ind. 
404,  83  Am.  Dec.  351 ;  Moyer's  Appeal,  77  Pa.  482 ;  Miller  v.  Aram,  37  Wis. 
142;  Barber  v.  Slade,  30  Vt.  191,  73  Am.  Dec.  299;  Barren  v.  Barron,  24  Vt. 
375.  A  husband  exercising  his  common-law  right  during  coverture  to  acquire 
title  to  his  wife's  choses  in  action  must  intend  by  the  act  whereby  he  possess- 


134  RIGHTS   IN   PROPERTY  AS  AFFECTED  BY  COVERTURE          (Ch.  3 

in  the  absence  of  evidence  to  the  contrary,  presumed  to  be  with 
such  an  intent,  and  a  reduction  to  possession.48 

"That  reduction  into  possession  which  made  the  chose  absolutely, 
as  well  as  potentially,  the  husband's,  was  a  reduction  into  posses- 
sion not  of  the  thing,  but  of  the  title  to  it."  49  As  to  what  acts  are 
to  be  deemed  a  sufficient  reduction  to  possession  of  his  wife's  chose 
in  action  by  a  husband,  Chancellor  Kent  says : B0  "The  rule  is  that, 
if  the  husband  appoints  an  attorney  to  receive  the  money,  and 
he  receives  it;8l(\Dr  if  he  mortgages  the  wife's  choses  in  action,  pr 
assigns  them  without  reservation,  for  a  valuable  consideration ; 82 
or  if  he  recovers  her  debt  by  a  suit  in  his  own  name ;  or  if  he  re- 
leases the  debt  by  taking  a  new  security  in  his  own  name — in  all 
these  cases,  upon  his  death,  the  right  of  survivorship  in  the  wife 
to  the  property  ceases.  And  if  the  husband  obtains  a  judgment  or 
decree  as  to  money  to  which  he  was  entitled  in  right  of  his  wife, 
and  the  suit  was  in  his  own  name  alone,  the  property  vests  in  him 
by  the  recovery,  and  is  so  changed  as  to  take  away  the  right  of 
survivorship  in  the  wife.  If  the  suit  was  in  their  joint  names,  and 
he  died  before  he  had  reduced  the  property  to  possession,  the  wife, 

es  himself  of  the  property  to  make  it  his  own ;  otherwise  it  remains  hers. 
Southern  Bank  of  Fulton  v.  Nichols,  235  Mo.  401,  138  S.  W.  881.  Possession 
by  husband  as  administrator  de  bonis  non  of  estate  to  which  wife  was  en- 
titled is  not  such  a  possession  as  would  vest  ownership  in  him,  as  the  posses- 
sion must  be  by  virtue  of  the  marital  relation.  Hauser  v.  Murray,  256  Mo. 
58,  165  S.  W.  376.  That  a  husband  who  had  a  certificate  of  deposit  made 
payable  to  himself  and  wife  retained  it  in  his  possession  does  not  show  a 
reduction  to  possession  destroying  the  wife's  rights  of  survivorship.  Smith 
v.  Haire,  133  Tenn.  343,  181  S.  W.  161,  Ann.  Cas.  1916D,  529.  A  husband, 
taking  his  wife's  personal  property  and  using  Jt  in  the  purchase  of  a  farm, 
and  taking  title  in  her  name  with  reversion  to  his  heirs,  thereby  reduced  it 
to  possession.  Neel's  Ex'r  v.  Noland's  Heirs,  166  Ky.  455,  179  S.  W.  430. 

* s  Johnston's  Adm'rs  v.  Johnston,  1  Grant,  Cas.  (Pa.)  468;  In  re  Hinds' 
Estate,  5  Whart.  (Pa,)  138,  34  Am.  Dec.  542. 

*»Tritt  v.  Colwell,  31  Pa.  228. 

502  Kent,  Comm.  137. 

si  As  to  receipt  by  attorney  or  agent,  see  Turton  v.  Turton,  6  Md.  375; 
Alexander  v.  Crittenden,  4  Allen  (Mass.)  342.  The  agent  or  attorney  must 
be  acting  for  the  husband,  and  not  for  the  wife,  nor  for  the  husband  and 
wife.  See  Fleet  v.  Perrins,  L.  R.  3  Q.  B.  536;  Hill  v.  Hunt,  9  Gray 
(Mass.)  66. 

52  Carteret'v.  Paschal,  3  P.  Wins.  197;  Bates  v.  Dandy,  2  Atk.  206;  Jewson 
v.  Moulson,  Id.  417;  Schuyler  v.  Hoyle,  5  Johns.  Ch.  (N.  Y.)  196;  Kenny  v. 
Udall,  5  Johns.  Ch.  (N.  Y.)  464 ;  Udell  v.  Kenney,  3  Cow.  (N.  Y.)  590 ;  Lowry 
v.  Houston,  3  How.  (Miss.)  394;  Case  of  Siter,  4  Rawle  (Pa.)  468;  Tritt's 
Adm'r  v.  Colwell's  Adm'r,  31  Pa.  228.  It  is  otherwise  where  there  is  no  con- 
sideration for  the  assignment.  Burnett  v.  Kinnaston,  2  Vern.  401;  Hartman 


§§  50-51)  WIFE'S  CHOSES  IN  ACTION  135 

as  survivor,  would  take  the  benefit  of  recovery.68  *  *  *  If  he 
takes  possession  in  the  character  of  trustee,  and  not  of  husband,  it 
is  not  such  a  possession  as  will  bar  the  right  of  the  wife  to  the 
property  if  she  survives  him.  The  property  must  come  under  the 
actual  control  and  possession  of  the  husband,  quasi  husband,  or 
the  wife  will  take,  as  survivor,  instead  of  the  personal  representa- 
tives of  the  husband." 

Assignees  in  bankruptcy  of  the  husband  possess  the  same  rights 
as  the  husband  to  reduce  the  wife's  choses  in  action  to  possession, 
but  they  possess  no  greater  rights ;  and,  if  the  husband  dies  before 
they  have  reduced  them  to  possession,  they  survive  to  the  wife.54 

Reduction  to  possession  of  a  part  of  a  claim  due  the  wife  is  not 
a  reduction  of  the  whole,  so  as  to  bar  the  wife's  right,  as  survivor, 
to  the  residue.  Collection  of  interest,  for  instance,  is  not  a  reduc- 
tion of  the  principal  to  possession.55  The  same  is  true  of  the  re- 
ceipt of  a  partial  payment  on  the  principal,56  the  receipt  of  divi- 
dends on  stock,57  etc. 

Wife's  Equity  to  a  Settlement 

Whenever  it  was  necessary  for  the  husband,  or  one  claiming  in 
his  right,  as  an  assignee,  for  instance,  to  ask  the  aid  of  a  court  of 
equity  to  reduce  the  wife's  personalty  to  possession,  the  court,  in 
pursuance  of  the  principle  that  he  who  seeks  equity  must  do  equity, 
required  of  the  husband  that  he  make  a  suitable  settlement  for  the 
maintenance  of  the  wife  and  children,  unless  they  were  already 
sufficiently  provided  for.  This  right  of  the  wife  is  called  the  wife's 
equity  to  a  settlement,  or  the  wife's  equity.58  There  is  much  doubt 


v.  Dowdel,  1  Eawle  (Pa.)  279.  Indorsement  and  transfer  of  bill  or  note. 
Mason  v.  Morgan,  2  Adol.  &  E.  30 ;  Evans  v.  Secrest,  3  Ind.  545. 

ssHilliard  v.  Hambridge,  Aleyn,  36;  McDowl  v.  Charles,  6  Johns.  Ch.  (N. 
Y.)  132;  Searing  v.  Searing,  9  Paige  (N.  Y.)  283. 

5*2  Kent,  Comm.  138;  Mitford  v.  Mitford,  9  Ves.  87;  Van  Epps  v.  Van 
Deusen,  4  Paige  (N.  Y.)  64,  25  Am.  Dec.  516;  Outcalt  v.  Van  Winkle,  2  N. 
J.  Eq.  516. 

so  Howman  v.  Corie,  2  Vern.  190;  Stanwood  v.  Stanwood,  17  Mass.  57; 
Dunn  v.  Sargent,  101  Mass.  336. 

ce  Nash  v.  Nash,  2  Madd.  133. 

57  Dunn  v.  Sargent,  101  Mass.  336. 

5  s  2^  Kent,  Comm.  135-143;  Story,  Eq.  Jur.  §  1402  et  seq. ;  Kenny  v.  Udall, 
5  Johns.  Ch.  (N.  Y.)  464;  Udell  v.  Kenney,  3  Cow.  (N.  Y.)  590;  Parsons  v. 
Parsons,  9  N.  H.  309,  32  Am.  Dec.  362  (an  elaborate  examination  into  the  his- 
tory and  doctrine  of  the  wife's  equity) ;  Howard  v.  Moffatt,  2  Johns.  Ch.  (N. 
Y.)  206;  Duvall  v.  Bank,  4  Gill  &  J.  (Md.)  282,  23  Am.  Dec,  558;  Whitesides 


136       RIGHTS  IN  PROPERTY  AS  AFFECTED  BY  COVERTURE     (Ch.  3 

and  conflict  as  to  the  circumstances  under  which  a  court  of  equity 
can  thus  interfere  to  compel  a  provision,  for  the  wife  out  of  her 
property.  Story  says:  "The  principal,  if  not  the  sole,  cases,  in 
which  courts  of  equity  now  interfere  to  secure  the  wife  her  equity 
to  a  settlement  are:  First,  where  the  husband  seeks  aid  or  relief 
in  regard  to  her  property ;  secondly,  where  he  makes  an  assignment 
of  her  equitable  interests;  thirdly,  where  she  seeks  the  like  relief 
as  plaintiff  against  her  husband  or  his  assignees  in  regard  to  her 
equitable  interests."  °9  The  last  class  includes  the  first  two  in  ef- 
fect, for,  if  she  may  proceed  against  him,  or  his  assignees,  in  all 
cases,  it  covers  the  whole  ground.60  While  there  are  some  cases 
which  seem  to  limit  the  power  of  courts  of  equity,  in  enforcing  the 
wife's  equity,  to  cases  in  which  the  husband  or  his  assignee  is  seek- 
ing the  aid  of  the  court  to  reduce  the  wife's  property  to  posses- 
sion, the  great  weight  of  authority  is  against  any  such  limitation, 
and  in  favor  of  the  statement  which  is  above  quoted  from  Story.  In 
an  early  New  York  case  it  was  said:  "If  the  husband  can  lay 
hold  of  the  property  without  the  aid  of  a  court  of  equity,  he  may  do 
it ;  the  court  has  not  the  means  of  enforcing  a  settlement  by  inter- 
fering with  his  remedies  at  law."  61  And  there  are  other  state- 
ments to  the  same  effect.62  In  a  later  New  York  case,  however, 
Chancellor  Kent  said :  'It  is  now  understood  to  be  settled  that  the 
wife's  equity  attaches  upon  her  personal  property  when  it  is  sub- 
ject to  the  jurisdiction  of  the  court,  and  is  the  object  of  the  suit, 
into  whosesoever's  hands  it  may  have  come,  or  in  whatever  man- 
ner it  may  have  been  transferred.  The  same  rule  applies  whether 
the  application  be  by  the  husband  or  his  representatives  or  assign- 
ees to  obtain  possession  of  the  property,  or  whether  it  be  by  the 
wife  or  her  trustee,  or  by  any  person  partaking  of  that  character, 
praying  for  that  provision  out  of  that  property."  63  This  broader 
jurisdiction  of  courts  to  enforce  the  wife's  equity  is  amply  support- 
ed by  authority.64 

v.  Dorris,  7  Dana  (Ky.)  106;  Perryclear  v.  Jacobs,  2  Hill,  Eq.  (S.  C.)  509; 
Dearin  v.  Fitzpatrick,  Meigs  (Tenn.)  551. 

o»2  Story,  Bq.  633. 

eo  Parsons  v.  Parsons,  9  N.  H.  309,  32  Am.  Dec.  362. 

ei  Howard  v.  Moffatt,  2  Johns.  Ch.   (N.  Y.)  206. 

ez  See  Bryan  v.  Bryan,  16  N.  O.  47. 

es  Kenny  v.  Udall,  5  Johns.  Ch.  (N.  Y.)  464;  Udell  v.  Kenney,  3  Cow.  (N. 
Y.)  590.- 

042  Kent,  Comm.  139-142;    Dumond  v.  Magee,  4  Johns.  Ch.  (X.  Y.)  318; 


§§  50-51)  WIFE'S  CHOSES  IN  ACTION  137 

The  jurisdiction  extends  to  restraining  the  husband,  or  one  claim- 
ing in  his  right,  as  assignee  or  otherwise,  from  obtaining  possession 
of  the  wife's  property  by  an  action  at  law,  and  thereby  defeating 
her  equity  to  a  settlement.  As  was  said  by  Chancellor  Walworth : 
"If  the  wife  is  entitled  to  such  an  equity  upon  a  bill  filed  by  a 
husband  or  his  assignee,  or  by  a  third  person,  as  all  the  cases  upon 
this  subject  admit,  I  see  no  valid  objection  in  principle  against 
granting  her  similar  relief  where  the  husband,  or  the  general  as- 
signee in  bankruptcy,  is  endeavoring  to  deprive  her  of  that  equity 
by  an  unconscientious  proceeding  at  law."  65  It  is  well  settled  that 
the  wife's  equity  may  be  enforced  against  assignees  of  the  hus- 
band.66 

This  protection  to  the  wife  by  enforcing  a  settlement  out  of  her 
property  cannot  be  afforded  in  some  of  the  states,  either  because 
there  is  no  court  of  chancery,  or  because  the  court  upon  which 
equity  jurisdiction  has  been  conferred  is  limited  in  its  powers,  so 
that  it  cannot  exercise  full  equity  jurisdiction.67 

A  wife  may  waive  her  equity  to  a  settlement,  if  she  does  so  apart 
from  her  husband,  and  under  the  direction  of  the  court.88  And  she 
loses  the  right  thereto  if  she  is  guilty  of  adultery.69  No  allowance 
will  be  made  to  her  out  of  her  property,  if  her  husband  has  made 
an  adequate  settlement  upon  her.70 

Dearin  v.  Fitzpatrick,  Meigs  (Term.)  551;  Salter  v.  Salter,  80  Ga.  178,  4 
S.  E.  391,  12  Am.  St.  Rep.  249. 

65  Van  Epps  v.  Van  Deusen,  4  Paige  (N.  Y.)  74,  25  Am.  Dec.  516.  For 
cases  in  which  the  court  has  interfered  by  restraining  the  husband  or  his 
assignee  from  proceeding  in  a  court  of  law  or  probate  to  reduce  a  debt  or 
legacy  due  the  wife  to  his  possession,  etc.,  see  2  Kent,  Comm.  139-142;  Fry 
v.  Fry,  7  Paige  (N.  Y.)  462;  Dumond  v.  Magee,  4  Johns.  Ch.  (N.  Y.)  318. 

662  Story,  Eq.  Jur.  §  1412;    Moore  v.  Moore,  14  B.  Mon.   (Ky.)  259. 

67Yohe  v.  Barnet,  1  Bin.  (Pa.)  358;  In  re  Miller's  Estate,  1  Ashm.  (Pa.) 
323 ;  Parsons  v.  Parsons,  9  N.  H.  309,  32  Am.  Dec.  362 ;  Allen  v.  Allen,  41  N 
O.  293. 

esgchouler,  Husb.  &  W.  §  162;  Coppedge  v.  Threadgill,  3  Sneed  (Tenn.) 
577. 

e a  Ball  v.  Montgomery,  2  Ves.  Jr.  191;  Fry  v.  Fry,  7  Paige  (N.  Y.)  462; 
Carter  v.  Carter,  14  Smedes  &  M.  (Miss.)  59. 

702  Kent,  Comm.  142,  143. 


138  RIGHTS  IN   PROPERTY  AS  AFFECTED  BY  COVERTURE          (Ch.  3 


ADMINISTRATION  OF  WIFE'S  ESTATE 

52.  Under  very  early  statutes,  and  perhaps  even  at  common  law, 
the  husband  is  entitled  to  administer  on  his  wife's  estate. 
He  may,  as  administrator,  recover  her  choses  in  action  for 
his  own  benefit;  but  he  takes  subject  to  her  debts  con- 
tracted dum  sola. 

As  has  just  been  shown,  if  the  wife  dies,  leaving  her  husband 
surviving  her,  before  he  has  reduced  her  chose  in  action  to  posses- 
sion, it  goes  to  her  personal  representative.71  The  husband,  there- 
fore, does  not  take  it  strictly  as  survivor.  Because  of  another  doc- 
trine, however,  he  does  acquire  it  in  effect.  He  is  entitled  to  re- 
cover it  to  his  own  use,  by  acting  as  her  administrator.  Her 
personal  property  in  possession  goes  to  him,  as  has  been  seen,  as 
survivor  strictly,  and  not  as  her  administrator,  for  such  property 
vests  in  him  absolutely.72  Her  choses  in  action  not  reduced  to 
possession  by  him  before  her  death  he  must  recover  as  her  admin- 
istrator. When  he  has  so  recovered  them,  he  is  entitled  to  take 
them  for  his  own  use,  jure  mariti.73  It  has  been  said  that  this 
right  probably  existed  at  common  law.7*  At  any  rate,  it  was  con- 
ferred by  statute  at  an  early  period.  It  was  given  in  England  by 
the  statute  of  distributions  of  22  &  23  Car.  II.  and  the  twenty-fifth 
section  of  the  statute  of  29  Car.  II.  c.  3,  in  explanation  thereof; 
and  these  statutes  were  substantially  re-enacted  in  this  country.75 

This  right  of  the  husband  extends  to  choses  in  action  which  were 
settled  to  the  separate  use  of  the  wife,  unless  previously  disposed 

71  Ante,  p.  131.  72  Ante,  p.  128. 

7»  2  Bl.  Oomm.  515 ;  2  Kent.  Conim.  136 ;  Watt  v.  Watt,  3  Ves.  244 ;  Gar- 
forth  v.  Bradley,  2  Ves.  Sr.  675 ;  Richards  v.  Richards,  2  Barn.  &  Adol.  447 ; 
Whitaker  v.  Whitaker,  6  Johns,  (N.  Y.)  112;  Hoskiiis  v.  Miller,  13  N.  C.  360: 
Humphrey  v.  Bullen,  1  Atk.  458;  Squib  v.  Wyn,  1  P.  Wins.  380;  Judge  of 
Probate  v.  Chamberlain,  3  N.  H.  129. 

7*2  Bl.  Coinm.  515,  516;   Hoskins  v.  Miller,  13  N.  C.  360. 

73  "The  foundation  of  this  claim  has  been  variously  stated.  By  some  it 
is  said  to  be  derived  from  St.  31  Edw.  III.,  on  the  ground  of  the  husband's 
being  'the  next  and  most  lawful  friend'  of  his  wife,  while  there  are  other 
authorities  which  insist  that  the  husband  is  entitled  at  common  law.  jure 
mariti,  and  independently  of  the  statute.  But  the  right,  however  founded,  is 
now  unquestionable,  and  is  expressly  confirmed  by  St.  29  Car.  II.  c.  3." 
1  Williams,  Ex'rs,  410.  See  Judge  of  Probate  v.  Chamberlain,  3  N.  H.  129. 
Kent,  however,  bases  the  right  on  the  statutes  of  22  &  23  Car.  II.,  and  29 
Car.  II.  c.  3,  §  25,  as  stated  in  the  text. 


§  53)  WIPE'S  CHATTELS   REAL  139 

of  by  her,  for  her  separate  estate  lasts  only  during  coverture.76 
The  right  is  subject  to  this  qualification:  that  the  estate  of  the 
wife  is  liable  to  the  payment  of  her  debts  contracted  dum  sola, 
and  the  husband  takes  subject  to  this  liability.77 

In  many  of  the  states  this  doctrine  has  been  abolished  by  statute, 
and  the  husband,  if  he  administers  on  his  wife's  estate,  must  ac- 
count. He  cannot  recover  for  his  own  use.78 


WIFE'S  CHATTELS  REAL 

53.  The  husband  has  the  enjoyment  of  his  wife's  chattels  real — 

leases  and  terms  for  years — during  his  life,  with  the  power 

..    to  dispose  of  and  incumber  them,  and  they  are  liable  for 

.  his  debts.     If  undisposed  of  on  his  death,  they  go  to  the 

wife.    On  the  wife's  death  they  go  to  him. 

Leases  and  terms  for  years  *are  known  as  "chattels  real."  The 
husband  is  entitled  to  the  enjoyment  of  his  wife's  chattels  real, 
and  may  sell,  assign,  mortgage,  or  otherwise  dispose  of  them  dur- 
ing his  life,79  and  they  are  liable  for  his  debts.80  He  cannot  dis- 
pose of  them  by  will  so  as  to  debar  a  surviving  wife,  though  his 
disposition  by  will  is  valid  if  his  wife  is  not  the  survivor.81  The 
wife's  chattels  real  which  have  not  been  appropriated  by  the  hus- 
band during  his  life,  or  taken  by  his  creditors,  belong  to  the  wife 
in  her  own  right,  if  she  is  the  survivor,  like  her  choses  in  action, 
and  belong  absolutely  to  the  husband,  if  he  is  the  survivor,  like 
her  personalty  in  possession.82 

762  Macq.  Husb.  &  W.  288;  Schouler,  Husb.  &  W.  §  196;  Proudley  v* 
Fielder,  2  Mylne  &  K.  57;  Ransom  v.  Nichols,  22  N.  Y.  110. 

77  2  Kent.  Comm.  136;    Heard  v.  Stamford,  3  P.  Wms.  409;   Donnington  v. 
Mitchell,  2  N.  J.  Eq.  243. 

7  s  Curry  v.  Fulkinson's  Ex'rs,  14  Ohio,  100 ;  Baldwin  v.  Carter,  17  Conn. 
201,  42  Am.  Dec.  735.  And  see  Leakey  v.  Maupin,  10  Mo.  368,  47  Am.  Dec. 
120.  See,  also,  post,  p.  183. 

78  Co.   Litt.  36b;    2  Kent,  Comm.   135;    Grute  v.  Locroft,  Cro.  Eliz.  287; 
Jackson  v.  McConnell,  19  Wend.  (N.  Y.)  175,  32  Am.  Dec.  439. 

'»o2  Kent,  Comm.  135;   Miles  v.  Williams,  1  P.  Wms.  258. 

si  Co.  Litt.  351a;  2  Kent,  Comm.  135;  Garforth  v.  Bradley,  2  Ves.  Sr.  675; 
Schuyler  v.  Hoyle,  5  Johns.  Ch.  (N.  Y.)  196;  Parsons  v.  Parsons,  9  N.  H.  309, 
32  Am.  Dec.  387. 

82  Co.  Litt.  351a ;    2  Kent,  Oomm.  135 ;    Doe  v.  Polgrean,  1  H.  Bl.  535. 


140      BIGHTS  IN  PROPERTY  AS  AFFECTED  BY  COVERTURE    (Ch.  3 


WIFE'S  ESTATES  OF  INHERITANCE 

54.  The  husband  acquires  by  marriage  the  usufruct  of  his  wife's 
estates  of  inheritance 

(a)  During  coverture,  and 

(b)  When  there  is  issue  of  the  marriage  born  alive,  then  for  life, 

as  tenant  by  the  curtesy. 

Where  .at  the  time  of  marriage  or  during  coverture  a  woman 
is  seised  of  an  estate  of  inheritance  in  land,  the  husband  is  entitled 
to  its  usufruct.  His  estate  lasts  at  least  during  coverture;  and  in 
case  there  is  issue  of  the  marriage  born  alive  capable  of  inheriting 
her  estate,  his  estate  continues  as  tenant  by  the  curtesy  initiate 
during  the  wife's  life,  and  as  tenant  by  the  curtesy  consummate, 
after  her  death,  for  the  remainder  of  his  life.88  The  husband's 
estate  extends  only  to  the  use  of  the  land.  He  is  entitled  to  the 


83  Co.  Litt.  351a ;  2  Bl.  Comm.  126 ;  2  Kent,  Comm.  130 ;  Beale  v.  Knowles, 
45  Me.  479;  Breeding  v.  Davis,  77  Va.  639,  46  Am.  Rep.  740;  Butterfield  v. 
Beall,  3  Ind.  203:  Junction  R.  Co.  v.  Harris,  9  Ind.  184,  68  Am.  Dec.  618;  Van 
Duzer  v.  Van  Duzer,  6  Paige  (N.  Y.)  366,  31  Am.  Dec.  257 ;  Litchfield  v.  Cud- 
worth,  15  Pick.  (Mass.)  23;  Thomas  v.  Sheppard,  2  McCord,  Eq.  (S.  C.)  36, 
16  Am.  Dec.  632;  Abies  v.  Abies,  86  Tenn.  333,  9  S.  W.  692;  Clarke's  Ap- 
peal, 79  Pa.  376;  Rogers  v.  Brooks,  30  Ark.  612;  Laidley  v.  Land  Co.,  30  W. 
.Va.  505,  4  S.  E.  705;  Sharpe  v.  Baker,  51  Ind.  App.  547,  96  N.  E.  627,  99  N.  E. 
44 ;  Bishop  v.  Readsboro  Chair  Mfg.  Co.,  85  Vt  141,  81  Atl.  454,  36  L.  R.  A. 
(X.  S.)  1171,  Ann.  Gas.  1914B,  1163;  Arnold  v.  Limeburgor,  122  Ga.  72, 
49  S.  E.  812,  Cooley  Cas.  Persons  and  Domestic  Relations,  71;  Winestine  v. 
Ziglatzki-Marks  Co.,  77  Conn.  404,  59  Atl.  496.  In  Van  Duzer  v.  Van  Duzer, 
supra,  it  was  held  that  the  court  cannot,  even  in  equity,  interfere  with  the 
husband's  rights  as  tenant  by  the  curtesy  initiate,  even  where  the  husband 
is  improvident,  and  to  allow  him  to  dispose  of  his  interest,  or  to  allow  it  to 
be  taken  by  his  creditors,  would  expose  the  wife  and  children  to  beggary. 
There  are  four  requisites  of  an  estate  by  the  curtesy,  namely:  (1)  Marriage, 
(2)  seisin  of  the  wife,  (3)  birth  of  issue  alive,  and  (4)  death  of  the  wife. 
During  the  wife's  life,  after  issue  born  alive,  the  husband  is  said  to  be  ten- 
ant by  the  curtesy  initiate.  It  is  only  upon  her  death  that  he  becomes  ten- 
ant by  the  curtesy  consummate.  Breeding  v.  Davis,  77  Va.  639,  46  Am.  Rep. 
740.  The  estate  of  the  husband  as  tenant  by  the  curtesy  has  been  abolished 
in  some  states,  but  not  in  all.  See,  for  example,  Code  Civ.  Proc.  S.  C.  1902, 
|  2670.  As  to  the  effect  of  the  married  women's  acts,  see  Breeding  v.  Davis, 
supra.  The  husband's  common-law  estate  Jure  uxoris  has  been  so  material- 
ly modified  by  legislative  enactments  that  only  a  bare  privilege  is  left  to  the 
husband  to  rent  out  his  wife's  land  and  to  collect  the  rents  for  the  benefit  of 
the  family  in  the  capacity  of  governor  of  the  family  and  not  for  himself  indi- 
vidually. Henderson  Grocery  Co.  v.  Johnson,  141  Tenn.  127,  207  S.  W.  723. 


§  54)  WIFE'S  ESTATES  OF  INHERITANCE  141 

rents,  issues,  and  profits,84  and  upon  his  death  the  emblements 
growing  upon  the  land  go  to  his  representatives.85 

He  may  alienate  the  land,  so  as  to  convey  his  interest.86  At 
common  law,  alienation  by  feoff ment  of  a  greater  estate  than  that 
to  which  he  was  entitled  forfeited  his  estate ; 87  but  this  doctrine  is 
not  now  .recognized  to  any  extent,  if  at  all.  His  deed  conveys 
whatever  interest  he  has.88  He  cannot  in  any  way  alienate  the 
land  so  as  to  cut  off  the  rights  of  the  wife  and  her  heirs  on  the 
termination  of  his  estate  by  his  death  before  the  wife  or  by  di- 
vorce.89 He  may  also  incumber  the  property,  but  only  to  the  ex- 
tent of  his  estate  therein.  On  his  death  his  wife  or  her  heirs  take 
clear  from  any  incumbrance  made  by  him.90  The  husband's  inter- 
est in  his  wife's  realty  is  liable  for  his  debts,  and  may  be  taken 
and  sold  on  execution.91  But  any  such  sale  is  subject  to  the  rights 
of  the  wife  or  her  heirs  on  the  husband's  death  or  a  divorce.92 

For  any  injury  to  the  profits,  or  to  the  mere  possession,  of  the 
land,  the  husband  may  sue  in  his  own  name.93  But,  as  his  es- 

s*  Co.  Litt,  29a;  2  Kent,  Comm.  130;  Clapp  v.  Inhabitants,  10  Pick.  (Mass.) 
463,  Cooley  Cas.  Persons  and  Domestic  Relations,  69;  Jones  v.  Patterson,  11 
Barb.  (N.  Y.)  572. 

852  Kent,  Oomm.  131;  Reeve,  Dom.  Rel.  31,  32;  Weems  v.  Bryan,  21  Ala. 
302 ;  Spencer  v.  Lewis,  1  Houst.  (Del.)  223.  The  husband's  tenant  has  the 
same  right  upon  the  husband's  death.  Rowney's  Case,  2  Vern.  322 ;  Gould 
v.  Webster,  1  Tyler  (Vt.)  409. 

862  Kent,  Comm.  133;  Trask  v.  Patterson,  29  Me.  502;  Dejarnatte  v. 
Allen,  5  Grat.  (Va.)  499;  Miller  v.  Shackleford,  3  Dana  (Ky.)  291. 

ST  Co.  Litt.  251b,  252a;  2  Inst.  309;  4  Kent,  Comm.  83;  1  Washb.  Real 
Prop.  142;  French  v.  Rollins,  21  Me.  372. 

ss  Miller  v.  Shackleford,  3  Dana  (Ky.)  291;  Meraman's  Heirs  v.  Caldwell's 
Heirs,  8  B.  Mon.  (Ky.)  32,  46  Am.  Dec.  537;  Flagg  v.  Bean,  25  N.  H.  49,  63; 
Dennett  v.  Dennett,  40  N.  H.  505 ;  Miller  v.  Miller,  Meigs  (Tenn.)  484,  33  Am. 
Dec.  157 ;  Butterfield  v.  Beall,  3  Ind.  203 ;  Munnerlyn  v.  Munnerlyn,  2  Brev. 
<S.  C.)  2;  McKee's  Lessee  v.  Pfout,  3  Dall.  (Pa.)  486,  1  L.  Ed.  690. 

8»  Cases  cited  above,  and  Huff  v.  Price,  50  Mo.  228 ;  Barber  v.  Root,  10 
Mass.  2GO ;  Jones  v.  Carter,  73  N.  C.  148. 

»o2  Kent,  Comm.  133;  Goodright  v.  Straphan,  1  Cowp.  201;  Drybutter  v. 
Bartholomew,  2  P.  Wins.  127 ;  Miller  v.  Shackleford,  3  Dana  (Ky.)  291 ;  Bar- 
ber v.  Harris,  15  Wend.  (N.  Y.)  615 ;  Kay  v.  Whittaker,  44  N.  Y.  565 ;  Boy- 
kin  v.  Rain,  28  Ala.  332,  65  Am.  Dec.  349. 

»i2  Kent,  Comm.  133;  1  Washb.  Real  Prop.  141;  Van  Duzer  v.  Van  Du- 
zer,  6  Paige  (N.  Y.)  366,  31  Am.  Dec.  257;  Litchfield  v.  Cudworth,  15  Pick. 
(Mass.)  23. 

»2  Mattocks  v.  Stearns,  9  Vt.  326;  Canby's  Lessee  v.  Porter,  12  Ohio,  79; 
Sale  v.  Saunders,  24  Miss.  24,  57  Am.  Dec.  157;  Babb  v.  Perley,  1  Greenl, 
(Me.)  6;  Barber  v.  Root,  10  Mass.  260. 

932  Kent,  Comm.  131;  Tallmadge  v.  Grannis,  20  Conn.  296;  Alexander  v. 
Hard,  64  N.  Y.  228. 


142  RIGHTS  IN  PROPERTY  AS  AFFECTED  BY   COVERTURE  (Ch. 3 

tate  is  merely  usufructuary,  his  wife  must  join  in  a  suit  for  an 
injury  to  the  inheritance.84  He  cannot  himself  impair  the  inherit- 
ance, as  by  committing  waste.  If  he  does  so,  the  coverture  would 
prevent  the  wife  from  suing  him  at  common  law  to  recover  dam- 
ages;95 but  he  would  be  liable  in  an  action  at  law  by  the  heir.9' 
And  a  court  of  equity  would  enjoin  him  in  a  suit  by  the  wife  for 
that  purpose.07  ^ 

Where  the  real  property  of  the  wife  is  sold  by  her  husband  and 
herself,  and  converted  into  money  or  choses  in  action,  these  pro- 
ceeds do  not  retain  the  character  of  realty,  but  become  personalty, 
and  subject  to  the  rules  governing  the  wife's  personalty  in  posses- 
sion,' or  her  choses  in  action,  according  to  the  character  of  the 
proceeds.98  This  is  also  true  where  the  conversion  is  by  operation 
of  law.99 

WIFE'S  ESTATES  FOR  LIFE 

55.  The  husband,  in  right  of  his  wife,  becomes  seised  of  her  life 
estates,  whether  for  her  own  life  or  for  the  life  of  another. 

If  the  wife  at  the  time  of  her  marriage  has  an  estate  for  life,  or 
for  the  life  of  another  person,  the  husband  becomes  seised  of  such 
an  estate  in  right  of  his  wife,  and  is  entitled  to  the  profits.  On  the 
death  of  the  wife,  the  estate  for  her  own  life  ceases,  and,  of  course, 
the  husband  has  no  further  interest.  If  she  has  an  estate  for  the 
life  of  some  other  person,  who  survives  her,  the  husband  becomes 
a  special  occupant  of  the  land  during  the  life  of  such  other  person. 
The  husband  can  dispose  of  or  incumber  the  estate  to  the  extent 

»«  2  Kent,  Comm.  131 ;  Weller  v.  Baker,  2  Wils.  414,  423 ;  Thacher  v.  Phin- 
ney,  7  Allen  (Mass.)  146 ;  Illinois  Cent.  R.  Co.  v.  Grable,  46  111.  445 ;  Wyatt 
v.  Simpson,  8  W.  Va.  394. 

»R2  Kent,  Comm.  131;  1  Washb.  Real  Prop.  118.  She  could  sue  a  creditor 
of  the  husband,  who  has  taken  the  land  on  execution,  and  could  sue  the 
husband's  assignee  or.  grantee.  Babb  v.  Perley,  1  Greenl.  (Me.)  6;  Mattocks 
v.  Stearns,  9  Vt.  826. 

»e  It  seems  that  the  heir  cannot  sue  the  assignee  of  the  husband  for  waste, 
because  of  want  of  privity.  See  2  Kent,  Coinm.  131 ;  Walker's  Case,  3  Coke, 
22;  Bates  v.  Shraeder,  13  Johns.  (N.  Y.)  260. 

»72  Kent,  Comm.  131;  1  Washb.  Real  Prop.  125;  Stroebe  v.  Fehl,  22  Wis. 
337 ;  Porch  v.  Fries,  18  N.  J.  Eq.  204. 

»8  Barber  v.  Slade,  30  Vt.  191,  73  Am.  Dec.  299 ;  Hall  v.  Young,  37  N.  H. 
134 ;  Johnson  v.  Bennett,  39  Barb.  (N.  Y.)  237 ;  Thomas  v.  City  of  Chicago, 
55  111.  403. 

»»  Graham  Y.  Dickinson,  3  Barb.  Ch.  (N.  Y.)  170;  Jones  v.  Plummer.  20 
Md.  416. 


§§  56-57)  MODIFICATION   OF   COMMON-LAW   RULES  143 

of  his  interest  in  it.    His  representatives  take  as  emblements  the 
crops  growing  at  his  death.1 


MODIFICATION  OF  COMMON-LAW  RULES 

56.  The  common-law  rules  as  to  the  rights  of  the  husband  to  the 

property  of  the  wife  have  been  modified. 

(a)  In  equity,  when  by  agreement  with  her  husband  a  married 

woman  becomes  a  sole  trader. 

(b)  In  equity,  by  creating  the  equitable  separate  estate  of  mar- 

ried women. 

57.  By  modern  statutes  in  all  the  states  certain  property  owned  or 

acquired  by  married  women,  and  in  some  states  all  the 
property  owned  or  acquired  by  them,  remains  their  sep- 
arate property. 

Wife  as  Sole  Trader 

The  common-law  rule,  giving-  the  husband  an  absolute  right  to 
his  wife's  earnings,  is  so  far  modified  in  equity  that  by  the  aid  of 
equity  she  is  enabled  to  carry  on  a  separate  trade  or  business,  and 
hold  the  property  connected  with  such  trade  or  business,  and  the 
profits  therefrom,  to  her  separate  use.  When  a  husband  has  agreed 
with  his  wife  that  she  may  carry  on  a  separate  trade  for  her  own 
use  and  benefit,  equity  will  protect  the  wife's  interests,  and  treat 
Ihe  husband,  when  no  trustees  have  been  appointed,  as  trustee 
/or  the  wife  as  to  her  stock  in  trade  and  the  profits  of  the  business. 
In  another  chapter  this  doctrine  will  be  considered  more  at  length.2 

Equitable  Separate  Estate 

As  will  be  explained  in  a  subsequent  chapter,  in  order  to  mitigate 
the  hardships  arising  from  the  rules  of  the  common  law  giving 
to  the  husband  rights  in  his  wife's  property,  equity  has  created  a 
doctrine  by  which  a  married  woman  may  acquire  and  hold  a  sep- 
arate estate,  both  real  and  personal,  independently  of  her  husband, 
and  free  from  his  control.  For  this  purpose  equity  treats  married 
women,  in  relation  to  their  separate  property,  as  if  sole.  The  doc- 
trine is  a  creature  of  equity  only,  and  is  unknown  to  the  common 
law." 

i  2  Kent,  Comm.  134.  2  Post,  p.  162.  8  See  post,  p.  185. 


144       RIGHTS  IN  PROPERTY  AS  AFFECTED  BY  COVERTURE    (Ch.  3 

Statutory  Separate  Estate 

In  all  of  the  states,  statutes  have  been  enacted  changing  the 
common-law  rules  in  so  far  as  they  give  the  husband  rights  in  his 
wife's  property.  In  none  of  the  states  is  the  old  common  law  in 
force  to  the  full  extent.  Perhaps  by  statute  in  all  the  states  the  real 
property  owned  by  a  woman  at  the  time  of  her  marriage  remains 
her  separate  property.  In  many  states  real  property  acquired  by 
her  after  marriage  by  descent,  devise,  or  purchase,"  and  in  some 
states  real  property  acquired  by  her  in  any  way,  becomes  and 
remains  her  separate  property.  In  most  states  the  personal  prop- 
erty owned  by  a  woman  at  the  time  of  her  marriage  remains  her 
separate  property.  In  most  states,  also,  personal  property  acquired 
by  her  after  marriage,  by  bequest  or  descent,  and  in  some  states  by 
purchase,  becomes  and  remains  her  separate  property.  The  effect 
of  these  statutes  will  be  considered  at  length  in  a  subsequent  chap- 
ter.* 

WIFE'S  RIGHTS  IN  HUSBAND'S  PROPERTY 

58.  At  the  death  of  the  husband  the  wife  is  entitled  at  common  law, 
or  under  an  early  English  statute,  or  similar  statutes  in 
this  country — 

(a)  As  her  dower',  at  common  law,  to  one-third  of  all  lands  of 

which  he  was  seised  at  any  time  during  the  coverture,  and 
which  her  issue  might  have  inherited. 

(b)  As  her  thirds,  if  the  husband  died  intestate,  under  the  stat- 

ute of  22  &  23  Car.  II.  c.  10,  to  one-third  of  his  personal 
property,  if  he  left  children  or  their  issue  living;  other- 
wise to  one-half. 

Corresponding  to  the  husband's  rights  by  curtesy,  the  surviv- 
ing wife  has  in  most  states  certain  rights  in  her  husband's  lands, 
known  as  dower.8  She  is  entitled,  as  her  dower,  to  one-third  of  all 
lands  and  tenements  of  which  her  husband  was  seised  at  any  time 
during  the  coverture,6  and  which  any  issue  which  she  might  have 

*  Post,  p.  192. 

o  Dower  has  oeen  abolished  In  some  states.  See,  for  example,  Code  Iowa 
1897,  §  3366;  Laws  Colo.  1903,  p.  469,  §  1;  Laws  Neb.  1907,  p.  197,  c.  49. 

e  In  Tennessee  (Shannon's  Code  1896,  §  4139)  and  Vermont  (P.  St.  1906,  f 
2921)  the  widow  has  dower  only  in  the  lands  of  which  the  husband  was 
seised  at  the  time  of  his  death.  So,  too,  in  some  states  a  nonresident  widow 
has  dower  only  in  the  lands  of  which  the  husband  was  seised  at  the  time  of 


§  58)  WIFE'S  RIGHTS  IN  HUSBAND'S  PROPERTY  145 

had  could  have  inherited.7  Dower  and  curtesy  differ  in  important 
particulars,  and  principally  in  that  dower  is  independent  of  the  birth 
of  issue. 

But,  corresponding  to  this  essential  of  curtesy  is  the  restriction 
that  the  wife  can  be  endowed  of  such  lands  only  as  her  issue  might 
have  inherited.  .  Thus,  where  the  husband  is  seised  of  lands  entail- 
ed in  favor  of  the  heirs  of  a  particular  woman,  the  issue  of  a  sec- 
ond wife  could  not  inherit,  and  she  has  no  right  of  dower  in  such 
lands.  A  further  important  difference  between  dower  and  curtesy 
is  that  in  some  states  by  statute  dower  is  not  restricted  to  the  life 
of  the  wife,  but  is  absolute,*  though  extending  to  only  one-third  of 
her  husband's  real  estate.  At  common  law  it  is  only  a  life  estate. 
Before  the  death  of  the  husband,  the  wife  has  an  inchoate  interest, 
which  may  ripen  into  dower,  and  any  alienation  by  the  husband 
will  be  subject  to  such  interest,9  unless,  as  she  is  very  generally  al- 
lowed by  statute  to  do,  she  joins  him  in  the  conveyance  for  the 
purpose  of  barring  her  dower.  In  some  states,  by  statute,  on  a 
judicial  sale  of  a  husband's  real  estate  vesting  an  absolute  title  in 
the  purchaser,  the  wife's  inchoate  interest  vests  as  it  would  on  his 
death.10 

Under  St.  22  &  23  Car.  II,  c.  10,  which  is  the  basis  of  the  stat- 
utes of  distribution  in  this  country,  and  which  has  been  closely 
followed  in  many  of  the  states,  the  widow  was  entitled,  in  case  of 
her  husband  dying  intestate,  to  one-third  of  his  personal  property, 
after  payment  of  his  debts,  in  case  he  left  children  or  their  issue 
surviving,  and,  in  default  of  surviving  children  or  their  issue,  to 
one-half.  In  the  latter  case  the  remaining  half  went  to  the  hus- 
band's next  of  kin,  if  any;  otherwise  to  the  crown.11  In  many 
states  statutes  have  been  enacted,  varying  more  or  less  in  the  dif- 
ferent states,  changing  the  common-law  rules. 

his  death.  Michigan:  Comp.  Laws  1897,  §  8938;  Ligare  v.  Semple,  32  Mich. 
438.  Wisconsin:  St.  1S98,  §  2160;  Bennett  v.  Harms,  51  Wis.  251,  8  N.  W. 
222.  Oregon :  B.  &  C.  Comp.  §  5535 ;  Thornburn  v.  Doscher  (C.  C.)  32  Fed. 
811. 

72  Bl.  Comm.  130;   Dickin  v.  Hamer,  1  Drew.  &  S.  284. 

s  In  Iowa  (Code  1897,  §  3366)  and  in  Minnesota  (Rev.  Laws  1905,  §  3648) 
the  widow  takes  her  distributive  share  in  lieu  of  dower,  in  fee. 

»  2  Bl.  Comm.  132 ;    Lowe  v.  Walker,  77  Ark.  103,  91  S.  W.  22. 

10  Elliott  v.  Cale,  113  Ind.  383,  14  N.  E.  708,  16  N.  E.  390. 

u2  Bl.  Comm.  515;   2  Kent,  Comm.  427;    Cave  v.  Roberts,  8  Sim.  214. 
TIFF.P.&  D.EEL.(3D  ED.)— 10 


146  EIGHTS  IN  PROPERTY  AS  AFFECTED  BY  COVERTURE        Ch.  3 


ESTATES  BY  THE  ENTIRETY 

59.  When  land  is  conveyed  or  devised  to  husband  and  wife  jointly, 
they  take  as  tenants  by  the  entirety.  Each  is  seised  of  the 
whole,  and  the  land  goes  to  the  survivor.  This  doctrine 
has  been  abolished  in  some  states  by  statute. 

Where  land  is  conveyed  or  devised  to  husband  and  wife  joint- 
ly, they  take,  at  common  law,  not  as  joint  tenants  or  tenants  in 
common,  but  as  tenants  by  the  entirety.12  Neither  of  them  has  an 

«2  Kent,  Comm.  132;  Marshall  v.  Lane,  27  App.  D.  C.  276;  Oliver  v. 
Wright,  47  Or.  322,  83  Pac.  870 ;  Naler  v.  Ballew,  81  Ark.  328,  99  S.  W.  72 ; 
Booth  v.  Fordham,  100  App.  Div.  115,  91  N.  Y.  Supp.  406,  affirmed  in  185  N. 
Y.  535,  77  N.  E.  1182;  Wilson  v.  Frost,  186  Mo.  311,  85  S.  W.  375,  105  Am. 
St  Rep.  619,  2  Ann.  Cas.  557 ;  Wales  v.  Coffin,  13  Allen  (Mass.)  213 ;  Fisher 
r.  Provin,  25  Mich.  347;  Vinton  v.  Beamer,  55  Mich.  559,  22  N.  W.  40;  McDuff 
v.  Beauchamp,  50  Miss.  531 ;  Bates  v.  Seely,  46  Pa.  248 ;  Zorntlein  v.  Bram, 
100  N.  Y.  12,  2  N.  E.  388;  Bertles  v.  Nunan,  92  N.  Y.  152,  44  Am.  Rep.  361; 
Wright  v.  Saddler,  20  N.  Y.  320;  Healey  Ice  Machine  Co.  v.  Green  (C.  C.) 
181  Fed.  890,  affirmed  191  Fed.  1004,  111  C.  C.  A.  668;  English  v.  English,  66 
Fla.  427,  63  South.  822 ;  Dotson  v.  Faulkenburg,  186  Ind.  417,  116  N.  E.  577 ; 
Hoag  v.  Hoag,  213  Mass.  50,  99  N.  E.  521,  Ann.  Cas.  1913E,  886;  Johnson  v. 
Johnson,  122  Ark.  363,  183  S.  W.  967 ;  Harris  v.  Carolina  Distributing  Co., 
172  N.  O.  14,  89  S.  E.  789;  Ann.  Cas.  1918C,  329;  Young  v.  Brown,  136  Term. 
184,  188  S.  W.  1149;  Smith  v.  Russell,  172  App.  Div.  793,  159  N.  Y.  Supp. 
169 ;  Lang  v.  Wilmer,  131  Md.  215,  101  Atl.  706,  2  A.  L.  R.  1698.  An  estate 
by  the  entirety  is  recognized  in  Oregon.  Chase  v.  McKenzie,  81  Or.  429,  159 
Pac.  1025.  And  in  New  York,  Mardt  v.  Scharmach,  65  Misc.  Rep.  124,  119 
N.  Y.  Supp.  449. 

"A  conveyance  of  lands  to  a  man  and  his  wife,  made,  after  their  intermar- 
riage, creates  and  vests  in  them  an  estate  of  a  very  peculiar  nature,  resulting 
from  that  intimate  union,  by  which,  as  Blackstone  says  'the  very  being  or 
legal  existence  of  the  woman  is  suspended  during  the  marriage,  or  at  least  is 
incorporated  and  consolidated  into  that  of  the  husband.'  The  estate,  correct- 
ly speaking,  is  not  what  is  known  in  the  law  by  the  name  of  joint  tenancy. 

*  *    *    The  very  name,  joint  tenants,  implies  a  plurality  of  persons.     It 
cannot,  then,  aptly  describe  husband  and  wife,  nor  correctly  apply  to  the  es- 
tate vested   in  them;    for  in   contemplation   of  law   they  are  one  person. 

*  *    *    Of  an  estate  in  joint  tenancy,  each  of  the  owners  has  an  undivided 
moiety  or  other  proportional  part  of  the  whole  premises;    each  a  moiety  if 
there  are  only  two  owners,  and  if  there  are  more  than  two  each  his  relative 
proportion.    They  take  and  hold  by  moieties  or  other  proportional  parts ; 
in  technical  language,  they  are  seised  per  my  et  per  tout.    Of  husband  and 
•wife,  both  have  not  an  undivided  moiety,  but  the  entirety.    They  take  and 
hold,  not  by  moieties,  but  each  the  entirety.     Each  is  not  seised  of  an  un- 
divided moiety,  but  both  are,  and  each  is  seised  of  the  whole.     They  are 
seised  not  per  my  et  per  tout,  but  solely  and  simply  per  tout     The  same 
words  of  conveyance  which  make  two  other  persons  joint  tenants  will  make 


§  59)  ESTATES  BY  THE  ENTIRETY  147 

undivided  half  of  the  land,  or  any  absolute  inheritable  interest,  but 
each  has  an  interest  in  the  whole,13  and  whatever  will  defeat  the 
interest  of  one  will  defeat  the  interest  of  the  other.14 

husband  and  wife  tenants  of  the  entirety."  Hardenbergh  v.  Hardenbergh,  10 
N.  J.  Law,  42,  18  Am.  Dec.  371. 

Tenancy  by  the  entirety  is  not  created  by  a  conveyance  to  a  man  and  a 
woman  who  are  not  married,  though  they  are  so  described  in  the  instru- 
ment, but  they  are  tenants  in  common,  even  though  believed  by  themselves 
and  by  the  grantor  to  be  husband  and  wife.  McKee  v.  Bevins,  138  Tenn.  249, 
197  S.  W.  563. 

It  does  not  affect  the  result  whether  the  consideration  was  furnished  part- 
ly by  both  or  entirely  by  one  of  them.  Stalcup  v.  Stalcup,  137  N.  C.  305,  49 
S.  E.  210.  Compare  Frost  v.  Frost,  200  Mo.  474,  98  S.  W.  527,  118  Am.  St. 
Rep.  689,  Cooley,  Gas.  Persons  and  Domestic  Relations,  74.  A  conveyance  by 
a  husband  to  himself  and  his  wife  does  not,  by  operation  of  law,  make  them 
tenants  by  the  entirety.  Saxon  v.  Saxon,  46  Misc.  Rep.  202,  93  N.  Y.  Supp. 
191.  A  life  lease  to  a  man  and  his  wife  created  an  estate  by  entirety,  giving 
neither  party  a  right,  title,  or  interest  which  may  be  incumbered  or  conveyed 
away  by  his  or  her  sole  act ;  the  survivor  taking  the  whole  estate,  the  dura- 
tion of  which  is  measured  by  the  survivor's  life.  Truitt  v.  City  of  Battle 
Creek,  205  Mich.  180,  171  N.  W.  338. 

In  equity  an  estate  conveyed  jointly  to  husband  and  wife,  without  the 
wife's  consent,  will  not  be  an  estate  by  entirety  if  the  lands  were  purchased 
with  the  wife's  separate  funds.  Donovan  v.  Griffith,  215  Mo.  149,  114  S.  W. 
621,  20  L.  R,  A.  (N.  S.)  825>,  128  Am.  St.  Rep.  458,  15  Ann.  Gas.  724.  Where 
in  partition  between  a  married  woman  and  others,  her  share  is  conveyed  to 
her  and  her  husband,  they  do  not  hold  by  entireties,  but  she  retains  her  ac- 
tual interest  in  the  land.  Stoffal  v.  Jarvis,  235  Pa.  50,  83  Atl.  609. 

Estates  by  entirety  may  be  created  in  personalty  as  well  as  in  realty.  Re- 
zabek  v.  Rezabek,  196  Mo.  App.  673,  192  S.  W.  107 ;  In  re  Sloan's  Estate,  254 
Pa.  346,  98  Atl.  966.  Where  a  deposit  in  bank  stands  in  the  joint  names  of 
the  husband  and  the  wife/  they  hold  by  entirety,  and,  on  the  death  of  either, 
the  survivor  takes  the  whole.  In  re  Klenke's  Estate,  210  Pa.  572,  60  Atl. 
166.  Where  certificates  of  deposit  in  a  bank  are  payable  to  husband  or  wife, 
as  well  as  where  they  are  payable  to  husband  and  wife,  it  is  a  joint  de- 
posit with  right  of  survivorship,  being  held  in  either  case  by  entireties.  In 
re  Sloan's  Estate,  254  Pa.  346,  98  Atl.  966.  And  see  Dupont  v.  Jonet,  165 
Wis.  554,  162  N.  W.  664.  Where  a  note  is  made  payable  to  a  husband  and 
wife,  they  are  owners  by  the  entireties.  In  re  Greenwood's  Estate,  201  Mo. 
App.  39,  208  S.  W.  635.  In  Michigan,  there  can  be  no  estate  by  entirety  in 
personal  property.  In  re  Berry  (D.  C.)  247  Fed.  700.  Nor  in  New  York.  In 
re  Baum,  121  App.  Div.  496,  106  N.  Y.  Supp.  113. 

is  Frost  v.  Frost,  200  Mo.  474,  98  S.  W.  527,  118  Am.  St.  Rep.  689.  Cooley, 
Cas.  Persons  and  Domestic  Relations,  74 ;  Sharpe  v.  Baker,  51  Ind.  App.  547, 
96  N.  E.  627,  99  N.  E.  44;  Otto  F.  Stifel's  Union  Brewing  Co.  v.  Saxy,  273 
Mo.  159,  201  S.  W.  67,  L.  R.  A.  1918C,  1009;  Simmons  v.  Meyers,  61  Ind. 
App.  403,  112  N.  E.  31 ;  In  re  Village  of  Holcomb,  97  Misc.  Rep.  241,  162  N. 
Y.  Supp.  848 ;  In  re  McKelway's  Estate,  221  N.  Y.  15,  116  N.  E.  348,  L.  R.  A. 
1917E,  1143,  reversing  order  In  re  McKelway,  176  App.  Div.  929,  162  N.  Y. 
Supp.  1129 ;  Ades  v.  Caplin,  132  Md.  66,  103  Atl.  94,  L.  R.  A.  1918D,  276. 

i*  Manwaring  v.  Powell,  40  Mich.  37L     A  judgment  against  a  husband 


148  RIGHTS  IN  PROPERTY  AS  AFFECTED  BY  COVERTURE        (Ch.  3 

During  coverture  both  take  the  same  and  an  inseparable  interest 
in  the  whole  property.18  Neither  has  such  a  separate  interest  as 
he  or  she  can  sell,  incumber,  or  devise,  and  neither  can  by  a  sepa- 
rate transfer  affect  the  rights  of  the  other.16  On  the  death  of  ei- 
ther, the  whole  estate  goes  to  the  survivor.17 

In  a  few  states  the  doctrine  of  tenancy  by  the  entirety  has  not 

does  not  affect  property  he  and  his  wife  hold  as  tenants  by  entireties.  Mas- 
terman  v.  Masterman,  129  Md.  167,  98  Atl.  537.  Land  held  by  husband  and 
wife  as  tenants  by  entirety  is  not  subject  to  levy  under  execution  on  judg- 
ment rendered  against  either  alone ;  but  a  joint  judgment  against  husband 
and  wife,  based  upon  their  alleged  fraud  in  exchange  of  realty,  may  be  satis- 
fied out  of  real  estate  held  by  them  as  tenants  by  entireties  and  independent 
of  homestead  and  statutory  exemptions.  Sanford  v.  Bertrau,  204  Mich.  244, 
169  N.  W.  880.  W^here  a  judgment  is  entered  against  both  husband  and  wife 
who  hold  land  by  entirety,  the  property  is  subject  to  execution,  but  where  the 
lien  and  judgment  against  the  husband's  interest  becomes  void  because  of 
his  bankruptcy,  levy  on  the  property  cannot  be  made  during  his  life.  Ades 
v.  Caplin,  132  Md.  66,  103  Atl.  94.  L.  R.  A.  1918D,  276. 

IB  Frost  v.  Frost,  200  Mo.  474,  98  S.  W.  527,  118  Am.  St  Rep.  689,  Cooley, 
Gas.  Persons  and  Domestic  Relations,  74.  Where  a  husband  and  wife  hold 
an  estate  as  tenants  by  entireties,  and  are  divorced,  the  tenancy  does  not 
thereby  become  a  tenancy  in  common.  Alles  v.  Lyon,  216  Pa.  604,  66  Atl.  81, 
10  L.  R.  A.  (N.  S.)  463,  116  Am.  St.  Rep.  791,  9  Ann.  Cas.  137. 

IB  Wales  v.  Coffin,  13  Allen  (Mass.)  213;  Fisher  v.  Provin,  25  Mich.  347; 
In  re  Berry  (D.  C.)  247  Fed.  700;  Masterman  v.  Masterman,  129  Md.  167,  OS 
Atl.  537 ;  Otto  F.  Stifel's  Union  Brewing  Co.  v.  Saxy,  273  Mo.  159,  201  S.  W. 
67,  L.  R.'A.  1918C,  1009;  In  re  Village  of  Holcomb,  97  Misc.  Rep.  241,  162 
N.  Y.  Supp.  848;  Bertles  v.  Nunan,  92  N.  Y.  152,  44  Am.  Rep.  361;  Zorntlein 
v.  Bram,  100  N.  Y.  12,  2  N.  B.  388;  Jackson  v.  McConnell,  19  Wend.  (N.  Y.) 
175,  32  Am.  Dec.  439 ;  Hubert  v.  Traeder,  139  Mich.  69,  102  N.  W.  283,  hold- 
ing that  a  contract  by  the  husband  alone,  whereby  another  was  to  have  the 
farm  at  the  husband's  death,  and  a  will  executed  by  the  husband  to  carry 
out  the  contract,  were  ineffectual  to  vest  any  title  as  against  the  surviving 
wife.  But  see  Bynum  v.  Wicker,  141  N.  C.  95,  53  S.  E.  478,  115  Am.  St  Rep. 
675,  holding  that  where  a  husband,  by  deed  in  which  the  wife  does  not  join, 
conveys  an  estate  held  by  entireties,  both  he  and  his  wife  are  estopped 
from  interfering  with  the  possession  of  the  premises  during  their  joint  lives. 

IT  Barber  v.  Harris,  15  Wend.  (N.  Y.)  615;  Pierce  v.  Chace,  108  Mass.  254; 
Bates  v.  Seeley,  46  Pa.  248 ;  Otto  F.  Stifel's  Union  Brewing  Co.  v.  Saxy,  273 
Mo.  159,  201  S.  W.  67,  L.  R.  A.  1918C,  1009;  Ades  v.  Caplin,  132  Md.  68, 
103  Atl.  94,  L.  R.  A.  1918D,  276;  Maxey  v.  Logan,  131  Ark.  593,  198  S.  W. 
270;  Dotson  v.  Faulkenburg,  186  Ind.  417,  116  N.  E.  577;  Church  v.  McLen- 
nan, 163  Wis.  424,  158  N.  W.  89 ;  Naler  v.  Ballew,  81  Ark.  328,  99  S.  W.  72 ; 
Oliver  v.  Wright,  47  Or.  322,  83  Pac.  870 ;  Frost  v.  Frost,  200  Mo.  474,  98  S. 
W.  527,  118  Am.  St.  Rep.  689;  Cooley,  Cas.  Persons  and  Domestic  Relations, 
74;  Young  v.  Biehl,  166  Ind.  357,  77  N.  E.  406;  Boland  v.  McKowen,  189 
Mass.  563,  76  N.  E.  206,  109  Am.  St.  Rep.  663 ;  French  v.  Mehan,  56  Pa.  286 ; 
JEtna  Ins.  Co.  v.  Resh,  40  Mich.  241 ;  Manwaring  v.  Powell,  40  Mich.  371 ; 
Allen  v.  Allen,  47  Mich.  74,  10  N.  W.  113.  In  a  late  Pennsylvania  case,  hus- 
band and  wife,  who  were  tenants  by  entireties,  mortgaged  the  land  so  held. 
After  the  wife's  death  it  was  sold  under  a  judgment  against  the  husband 


§  59)  ESTATES  BY  THE  ENTIRETY  149 

been  recognized,  it  seems;18  and  in  some  states  it  has  been 
abolished,  or  modified  by  statute,  so  that  a  conveyance  to  husband 
and  wife  makes  them  joint  tenants  or  tenants  in  common;  the 
statutes  varying  somewhat  in  the  different  states.19  In  many 
states,  however,  the  doctrine  still  obtains. 

It  has  been  held  that  the  wife's  interest,  in  view  of  its  nature, 
in  property  thus  held  by  the  entirety,  cannot  be  regarded  as  her 
separate  property  within  the  meaning  of  statutes  giving  married 
women  the  power  to  hold  separate  property,  and  convey  the  same, 
or  contract  with  reference  to  it.20 

entered  prior  to  the  mortgage.  It  was  held  that,  as  the  wife's  estate  termi- 
nated at  her  death,  the  purchaser  at  the  execution  sale  took  a  good  title  as 
against  the  mortgage.  Fleek  v.  Zillhaver,  117  Pa.  213,  12  Atl.  420.  Where  a 
husband  and  wife  owned  land  by  the  entireties,  the  wife  can,  after  death  of 
husband,  make  a  valid  and  binding  agreement  for  the  sale  of  same  and  con- 
vey good  title.  Ginn  v.  Edmundson,  173  N.  C.  85,  91  S.  E.  696.  Where,  after 
a  conveyance  to  husband  and  wife  in  fee  by  entireties,  a  divorce  a  mensa  et 
thoro  was  granted,  and  the  husband  died  before  the  wife,  the  husband's 
heirs  were  not  entitled  to  any  part  of  the  land,  but  the  entire  estate  descend- 
ed to  the  wife's  heirs.  Freeman  v.  Belfer,  173  N.  C.  581,  92  S.  E.  486,  L. 
R.  A.  1917E,  886. 

is  See  Sergeant  v.  Steinberger,  2  Ohio,  305,  15  Am.  Dec.  553;  Whittlesey  v. 
Fuller,  11  Conn.  337;  Swan  v.  Walden,  156  Cal.  195,  103  Pac.  931,  134  Am. 
St  Rep.  118,  20  Ann.  Gas.  194. 

i»  See  Gresham  v.  King,  65  Miss.  387,  4  South.  120;  Bassler  v.  Rewod- 
linski,  130  Wis.  26,  109  N.  W.  1032,  7  L.  R.  A.  (N.  S.)  701 ;  Holmes  v.  Holmes, 
70  Kan.  892,  79  Pac.  163.  A  husband's  common-law  rights  in  leasehold  prop- 
erty held  by  himself  and  his  wife  as  tenants  by  entireties  were  materially 
changed  by  Code  Pub.  Gen.  Laws  1888,  art.  45,  §§  1,  2,  as  amended  by  Acts 
1892,  c.  267,  and  Acts  1890,  c.  394,  and  section  12,  protecting)  the  wife's 
property  from  her  husband's  debts  and  allowing  her  to  sue  and  be  sued  con- 
cerning it.  Masterman  v.  Masterman,  129  Md.  167,  98  Atl.  537.  Some  courts 
hold  that  the  doctrine  is  impliedly  abolished  by  the  married  women's  acts 
giving  them  separate  property  rights.  Cooper  v.  Cooper,  76  111.  57 ;  Green  v. 
Cannady,  77  S.  C.  193,  57  S.  E.  832;  Clark  v.  Clark,  56  N.  H.  105.  Pub. 
Acts  1913,  c.  26,  emancipating  married  women,  abolished  estates  by  the  en- 
tireties, and  deed  of  land  to  husband  and  wife  created  tenancy  in  common; 
joint  tenancy  having  been  abolished  by  Thomp.  Shan.  Code,  §  3677.  Gill 
v.  McKinney,  140  Tenn.  549,  205  S.  W.  416.  But  the  weight  of  authority  is 
to  the  contrary.  Pray  v.  Stebbins,  141  Mass.  219,  4  N.  E.  824,  55  Am.  Rep. 
462;  Bilder  v.  Robinson,  73  N.  J.  Eq.  169,  67  Atl.  828;  McDuff  v.  Beauchamp, 
50  Miss.  531 ;  Gresham  v.  King,  65  Miss.  387,  4  South.  120 ;  Bertles  v.  Nunan, 
92  N.  Y.  152,  44  Am.  Rep.  361;  McCurdy  v.  Canning,  64  Pa.  39;  Marburg 
v.  Cole,  49  Md.  402,  33  Am.  Rep.  266;  Fisher  v.  Provin,  25  Mich.  347; 
Flaherty  v.  Columbus,  41  App.  D.  C.  525 ;  Craig  v.  Bradley,  153  Mo.  App.  586, 
134  S.  W.  1081;  Jones  v.  W.  A.  Smith  &  Co.,  149  N.  C.  318,  62  S.  E.  1092, 
19  L.  R.  A.  (N.  S.)  1037,  128  Am.  St.  Rep.  661 ;  Diver  v.  Diver,  56  Pa.  106 ; 
Hetzel  v.  Lincoln,  216  Pa.  60,  64  Atl.  866. 

20  Speier  v.  Opfer,  73  Mich.  35,  40  N.  W.  909,  2  L.  R.  A.  345,  16  Am.  St. 
Rep.  556;  Curtis  v.  Crowe,  74  Mich.  99,  41  N.  W.  876.  But  see  Dreutzer 


150  RIGHTS  IN   PROPERTY  AS  AFFECTED  BY   COVERTURE          (Ch. 3 


COMMUNITY  PROPERTY 

60.  In  some  states,  by  statute,  property  acquired  by  husband  and 
wife,  or  by  either  of  them,  during  coverture,  otherwise 
than  in  certain  excepted  ways  specified  in  the  statute,  is  de- 
clared to  be  common  property.  These  statutes  create  a 
kind  of  partnership  between  husband  and  wife  in  regard 
to  property.  The  doctrine  was  adopted  from  the  civil  law, 
and  was  unknown  to  the  common  law. 

The  community  property  doctrine  was  unknown  to  the  common 
law,  and  it  seems  was  equally  unknown  to  the  Roman  law.  It 
had  its  origin  among  Teutonic  peoples,21  and,  becoming  ingrafted 
on  the  French  and  Spanish  law,  was  carried  to  the  colonies  of 
France  and  Spain  in  the  New  World.  By  adoption  from  the  Codes 
of  those  countries  it  now  prevails  in  Louisiana,  Texas,  California, 
Washington,  and  a  few  other  Western  and  Southwestern  states. 
The  general  scheme  of  these  statutes  is  the  same,  but  they  vary 
widely  in  details,  and  it  is  not  possible  to  state  general  rules  which 
will  be  applicable  in  all  the  states.  The  statutes  and  decisions 
must  be  consulted.  In  most  instances  all  the  property  acquired 
during  coverture  by  either  the  husband  or  the  wife,  or  by  both,  is 
declared  to  be  common  or  community  property ; 22  but  generally 

v.  Lawrence,  58  Wis.  594,  17  N.  W.  423.  And  see  Citizens'  Sav.  Bank  & 
Trust  Co.  v.  Jenkins,  91  Vt.  13,  99  Atl.  250,  holding  that  under  P.  S.  3040, 
3041,  the  wife's  interest  in  an  estate  by  entirety  is  her  separate  property 
and  not  subject  to  her  husband's  debts. 

21  Cole  v.  Cole's  Ex'rs,  7  Mart.  N.  S.  (La.)  41,  18  Am.  Dec.  241. 

22  Otto    v.    Long,    144    Cal.    144,    77    Pac.    885;     Pancoast    v.    Pancoast, 
57   Cal.   320;     Moody   v.    Southern   Pac.    Co.,    167    Cal.    786,    141   Pac.    388; 
Douglas  v.  Douglas,  22  Idaho,  336,   125  Pac.  796;    In  re  Slocum's  Estate, 
83  Wash.  158,  145  Pac.  204;    Knoblock  &  Rainold  v.  Posey,  126  La.  610,  52 
South.  847;    Wade  v.  Wade  (Tex.  Civ.  App.)  106   S.    w.  188;,    Merrell  v. 
Moore,  47  Tex.  Civ.  App.  200,  104  S.  W.  514;    Edwards  v.  White  (Tex.  Civ. 
App.)  120  S.  W.  914;    Newman  v.  Newman  (Tex.  Civ.  App.)  86  S.  W.  635; 
Sweeney  v.  Taylor  Bros.,  41  Tex.  Civ.  App.  365,  92  S.  W.  442;    Crochet  v. 
McCamant,  116  La.  1,  40  South,  474,  114  Am.  St  Rep.  538 ;    Pior  v.  Giddens, 
50  La.  Ann.  216,  23  South.  337. 

Property  to  which  title  is  acquired  by  adverse  possession  by  husband  and 
wife  is  community  property.  Villescas  v.  Arizona  Copper  Co.,  20  Ariz.  268, 
179  Pac.  963.  A  government  homestead  patented  to  a  husband  is  community 
property  under  the  law  of  Washington.  Buchser  v.  Morss,  202  Fed.  854,  121 
C.  C.  A.  212,  affirming  decree  (D.  C.)  196  Fed.  577,  and  decree  affirmed 
Buchser  v.  Buchser.  231  U.  S.  157,  34  Sup.  Ct.  46,  58  L.  Ed.  166.  But  title 
acquired  by  homestead  entryman  after  the  death  of  his  wife  does  not  re- 


§  60)  COMMUNITY   PROPERTY  151 

property  acquired  by  gift,  bequest,  devise,  or  descent  is  excepted, 
and  becomes  the  separate  property  of  the  spouse  by  whom  it  is 
acquired.23  So,  too,  property  held  by  either  husband  or  wife  at  the 
time  of  the  marriage,  and  property  acquired  by  means  of  the  sepa- 
rate property  of  either  spouse,  does  not  become  community  prop- 
erty.24 

The  general  rule  is  that  the  character  of  the  property  as  com- 
munity or  separate  property  is  determined  as  of  the  time  of  its 

late  back  to  the  community  which  formerly  existed.  Wadkins  v.  Producers' 
Oil  Co.,  130  La.  308,  57  South.  937,  judgment  affirmed  Same  v.  Producers' 
Oil  Co.,  227  U.  S.  368,  33  Sup.  Ct.  380,  57  L.  Ed.  551.  And  see,  also,  Baker 
v.  Saxon,  24  N.  M.  531,  174  Pac.  991,  where  title  to  public  lands  was  acquired 
after  divorce. 

Money  saved  by  a  wife  from  a  monthly  household  allowance  is  com- 
munity property,  in  the  absence  of  an  agreement  or  understanding  between 
the  spouses  that  it  was  to  be  the-  wife's  separate  property.  McMurray  v. 
Bodwell,  16  Cal.  App.  574,  117  Pac.  627.  In  the  absence  of  an  understanding 
or  agreement  at  the  time,  money  borrowed  by  either  the  husband  or  wife 
is  community  property.  Emerson-Brantingham  Implement  Co.  v.  Brothers 
(Tex.  Civ.  App.)  194  S.  W.  608.  The  earnings  of  the  wife  are  community 
property,  in  the  absence  of  an  agreement  that  they  shall  be  her  separate 
property.  Moore  v.  Crandall,  205  Fed.  689,  124  C.  C.  A.  11  (under  California 
statute) ;  Lilly  v.  Yeary  (Tex.  Civ.  App.)  152  S.  W.  823 ;  Marsh  v.  Fisher,  69 
Wash.  570,  125  Pac.  951.  Right  of  action  for  damages  for  personal  injury  to 
wife  is  community  property.  Moody  v.  Southern  Pac.  Co.,  167  Cal.  786,  141 
Pac.  388;  Schneider  v.  Biberger,  76  Wash.  504,  136  Pac.  701,  6  A.  L.  R. 
1056;  City  of  San  Antonio  v.  Wildenstein,  49  Tex.  Civ.  App.  514,  109  S.  W. 
231.  Crops  grown  on  separate  property  become  community  property.  Hanks 
v.  Leslie  (Tex.  Civ.  App.)  159  S.  W.  1056.  Increase  of  cattle  given  to  wife  is 
community  property.  Barr  v.  Simpson,  54  Tex.  Civ.  App.  105,  117  S.  W.  1041. 
Otherwise  under  Idaho  Code.  Bank  of  Nez  Perce  v.  Pindel,  193  Fed.  917, 
113  C.  C.  A.  545.  Vernon's  Sayles'  Ann.  Civ.  St.  1914,  arts.  4621,  4622,  as 
amended  March  21,  1913  (Acts  33d  Leg.  c.  32),  do  not  make  the  rents  from 
the  separate  real  estate  of  the  wife  her  separate  property,  but  merely  gives 
her  control  thereof,  and  the  rents  received  from  such  property  are  com- 
munity property.  Emerson-Brantingham  Implement  Co.  v.  Brothers  (Tex. 
Civ.  App.)  194  S.  W.  608.  Policies  of  life  insurance  issued  to  the  husband 
some  time  before  his  marriage  form  part  of  his  separate  estate,  and  the 
proceeds  were  properly  placed  to  the  credit  of  his  property.  Succession 
of  Verneuille,  120  La.  605,  45  South.  520.  To  the  same  effect,  Jones  v. 
Jones  (Tex.  Civ.  App.)  146  S.  W.  265. 

23  Wade  v.  Wade  (Tex.  Civ.  App.)  106  S.  W.  188;  Merrell  v.  Moore,  47 
Tex.  Civ.  App.  200,  104  S.  W.  514;  Bellinger  v.  Wright,  143  Cal.  292,  76 
Pac.  1108;  Stockstill  v.  Bart  (C.  C.)  47  Fed.  231;  Lake  v.  Bender,  18  Nev. 
361,  4  Pac.  711,  7  Pac.  74;  Allen  v.  Allen,  6  Rob.  (La.)  104,  39  Am.  Dec. 
553 ;  Hurst  v.  W.  B.  Thompson  &  Co.,  118  La.  57,  42  South.  645 ;  Winters 
v.  Winters,  34  Nev.  323,  123  Pac.  17,  1135;  Gotten  v.  Friedman  (Tex.  Civ. 
App.  158  S.  W.  780;  Holly  St.  Land  Co.  v.  Beyer,  48  Wash.  422,  93  Pac. 
1065.  The  husband  may  give  or  convey  to  the  wife  community  property, 

2*  See  note  24  on  following  page. 


152       RIGHTS  IN  PROPERTY  AS  AFFECTED  BY  COVERTURE     (Ch.  3 

acquisition.28  So,  too,  the  question  whether  personal  property 
is  community  or  separate  is  determined  by  the  law  of  the  matri- 
monial domicile  at  the  time  of  its  acquisition,28  and  where  prop- 
erty which,  under  the  law  of  the  domicile,  is  the  separate  property 
of  the  husband  or  the  wife,  is  removed  into  another  state  where  the 

and  thereby  make  It  her  separate  property,  when  It  is  not  done  in  fraud  of 
creditors,  and  such  a  gift  is  good  against  subsequent  creditors  of  the  hus- 
band. Amend  v.  Jahns  (Tex.  Civ.  App.)  184  S.  W.  729;  Collett  v.  Houston 
&  T.  C.  R.  Co.  (Tex.  Civ.  App.)  186  S.  W.  232;  Printz  v.  Brown,  31  Idaho, 
443,  174  Pac.  1012. 

2<  Oaks  v.  Oaks,  94  Cal.  66,  29  Pac.  330;  Smith  v.  Smith,  12  Oal.  216,  73 
Am.  Dec.  533;  In  re  Dargie's  Estate,  179  Cal.  418,  177  Pac.  165;  Booker 
v.  Booker  (Tex.  Civ.  App.)  207  S.  W.  675;  Letot  v.  Peacock  (Tex.  Civ.  App.) 
94  S.  W.  1121 ;  Wade  v.  Wade  (Tex.  Civ.  App.)  106  S.  W.  188 ;  Love  v.  Rob- 
ertson, 7  Tex.  6,  56  Am.  Dec.  41 ;  Douglas  v.  Douglas,  22  Idaho,  336,  125  Pac. 
796;  Graves  v.  Columbia  Underwriters,  93  Wash.  196,  160  Pac.  436;  Free- 
burger  v.  Gazzam,  5  Wash.  772,  32  Pac.  732.  But  in  Louisiana  such  prop- 
erty, as  a  rule,  becomes  community  property,  subject  to  a  claim  to  the 
amount  of  the  separate  property  so  used  in  favor  of  the  spouse  whose  sep- 
arate estate  furnished  the  consideration.  Moore  v.  Stancel,  36  La.  Ann. 
819 ;  Le  Blanc  v.  Le  Blanc,  20  La.  Ann.  206. 

If  the  husband  acquires  lands  with  money  belonging  to  him  before  his 
marriage,  such  land  is  his  "separate  property,"  and  other  land  purchased 
with  the  proceeds  thereof  is  also  his  "separate  property."  Worden  v.  Worden, 
96  Wash.  592,  165  Pac.  501.  To  the  same  effect,  see  Dyment  v.  Nelson,  166 
Cal.  38,  134  Pac.  988;  O'Farrell  v.  O'Farrell,  56  Tex.  Civ.  App.  51,  119  S. 
W.  899;  Holly  St.  Land  Co.  v.  Beyer,  48  Wash.  422,  93  Pac.  1065.'  Where 
a  husband,  after  marriage,  conveyed  to  his  wife  land  acquired  by  him  before 
marriage,  and  she  reconveyed  it  to  him,  land  which  originally  was  his  sep- 
arate property  again  became  his  separate  property,  under  Rem.  Code  1915, 
§  8766.  Brown  v.  Davis,  98  Wash.  442,  167  Pac.  1095.  Where  plaintiff  at 
her  marriage  owned  two  lots,  and  one  of  the  houses  thereon  was  built  by 
her  husband,  employed  by  her  and  paid  out  of  her  separate  funds,  the  hus- 
band had  no  community  interest  in  the  improvement.  Glaze  v.  Pullman 
State  Bank,  91  Wash.  187,  157  Pac.  488.  Where  wife  takes  conveyance  of 
property  purchased  in  part  with  her  separate  estate  and  partly  with  com- 
munity funds,  deed  having  nothing  to  show  property  is  conveyed  to  wife 
as  her  separate  estate,  there  being  no  agreement  that  it  shall  be  her  sepa- 
rate property,  the  wife  has  a  separate  interest  proportionate  to  amount  her 
separate  estate  contributed.  Ochoa  v.  Edwards  (Tex.  Civ.  App.)  1S9  S.  W. 
1022;  In  re  Finn's  Estate,  106  Wash.  137,  179  Pac.  103.  An  automobile, 
bought  by  a  wife  out  of  her  separate  property  on  a  separate  property  transac- 
tion, was  not  community  property,  and  was  not  subject  to  attachment  in  an 
action  against  the  husband.  Rhoades  v.  Lyons,  34  Cal.  App.  615,  168  Pac.  385. 

25  Folsom  v.  Folsom,  106  Wash.  315,  179  Pac.  847;    Union  Savings  &  Trust 
Co.  v.  Maiiney,  101  Wash.  274,  172  Pac.  251;    Stiles  v.  Hawkins  (Tex.  Com. 
App.)  207   S.   W.  89,   reversing  Hawkins  v.   Stiles   (Tex.   Civ.  App.)   158   S. 
W.  1011.    Proceeds  of  life  insurance  payable  to  executors,  administrators,  or 
assigns  of  assured  are  either  community  or  separate  property  of  the  assured, 
depending  on  whether  he  was  married  or  single  when  the  contract  was  made. 
Succession  of  Le  Blanc,  142  La.  27,  76  South.  223,  L.  R.  A.  1917F,  1137. 

26  Douglas  v.  Douglas,  22  Idaho,  336,  125  Pac,  790. 


§  60)  COMMUNITY   PROPERTY  153 

law  of  community  property  exists,  its  character  as  separate  prop- 
erty will  not  be  changed.27 

The  central  idea  of  the  community  system  is  that  marriage  cre- 
ates a  partnership  in  property  between  husband  and  wife,  and 
that  all  property  resulting  from  the  labor  of  either  or  both  of  them, 
and  all  property  vesting  in  either  or  both  of  them,  except  in  the 
ways  expressly  excepted  by  the  statute,  inures  to  the  benefit  of  both 
of  them;  and,  though  community  property  has  not  all  the  inci- 
dents of  partnership  property,  it  has  many  of  them,  and  is  common- 
ly called  "partnership  property."  28 

The  presumption  of  law  is  that  property  purchased  during  the 
existence  of  the  marriage  relation>  whether  it  is  purchased  in  the 
name  of  both  spouses  or  in  the  name  of  one  only,  is  community 
property.29 

27  in  re  Niccoll's  Estate,  164  Cal.  368,  129  Pac.  278;  Douglas  v.  Douglas, 
22  Idaho,  336,  125  Pac.  796 ;  Brookman  v.  Durkee,  46  Wash.  578,  90  Pac.  914, 
12  L,  R.  A.  (N.  S.)  921,  123  Am.  St.  Rep.  944,  13  Ann.  Gas.  839.  The  sep- 
arate personal  property  enjoyed  under  the  law  of  the  domicile  by  one  of 
the  spouses  when  it  was  acquired  is  not  lost  by  its  investment  in  realty  in 
another  jurisdiction  where  the  law  of  community  property  is  in  force.  In 
re  Warner's  Estate,  167  Cal.  686,  140  Pac.  583 ;  Meyers  v.  Albert,  76  Wash. 
218,  135  Pac.  1003 ;  Douglas  v.  Douglas,  22  Idaho,  336,  125  Pac.  796.  In  de- 
termining whether  land  acquired  under  homestead  laws  of  the  United  States 
falls  into  a  community  already  dissolved  by  the  death  of  the  wife,  the 
laws  of  the  United  States  and  not  the  laws  of  the  state  apply.  Wadkins 
v.  Producers'  Oil  Co.,  130  La.  308,  57  South.  937,  judgment  affirmed  Same 
v.  Producer  Oil  Co.,  227  U.  S.  368,  33  Sup.  Ct.  380,  57  L.  Ed.  551. 

283  Am.  &  Eng.  Enc.  Law,  350,  354.  See  De  Blane  v.  Lynch,  23  Tex.  25; 
Meyer  v.  Kinzer,  12  Cal.  247,  73  Am.  Dec.  538;  Clark  v.  Norwood,  12  La. 
Ann.  598 ;  Cooke  v.  Bremond,  27  Tex.  457,  86  Am.  Dec.  626 ;  Higgins  v.  John- 
son's Heirs,  20  Tex.  389,  70  Am.  Dec.  394.  Community  status,  like  partner- 
ship, has  elements  of  gains  and  losses  based  on  presumed  labors  of  each, 
irrespective  of  real  industry  of  either.  Briggs  v.  McBride  (Tex.  Civ.  App.) 
190  S.  W.  1123.  Where  there  has  been  no  lawful  marriage,  there  can  be 
no  community  property.  In  re  Sloan's  Estate,  50  Wash.  86,  96  Pac.  684,  17 
L.  R.  A.  (N.  S.)  960.  A  divorce  determines  the  community  estate,  and  there- 
after the  spouses  are  tenants  in  common  rather  than  copartners.  Johnson 
v.  Garner  (D.  C.)  233  Fed.  756.  Where,  when  a  man  married,  he  had,  as 
at  all  times  thereafter,  a  living  and  undivorced  wife,  property  purchased  by 
him  and  the  second  putative  wife  with  joint  earnings,  deeds  naming  both 
as  grantees,  was  not  community  property,  but  joint  or  partnership  property 
of  the  two.  Little  v.  Nicholson  (Tex.  Civ.  App.)  187  S.  W.  506. 

2 »  Meyer  v.  Kinzer,  12  Cal.  247,  73  Am.  Dec.  538;  In  re  Pepper's  Estate, 
158  Cal.  619,  112  Pac.  62,  31  L.  R.  A.  (N.  S.)  1092 ;  Latour  v.  Guillory,  130 
La.  570,  58  South.  341;  Kin  Kaid  v.  Lee,  54  Tex.  Civ.  App.  622,  119  S.  W. 
342;  Love  v.  Robertson,  7  Tex.  6,  56  Am.  Dec.  41;  Morris  v.  Hastings,, 
70  Tex.  26,  7  S.  W.  649,  8  Am.  St.  Rep.  570;  Smalley  v.  Lawrence,  9  Rob. 
<La.)  211;  Stauffer  v.  Morgan,  39  La.  Ann.  632,  2  South.  98;  Lake  v.  Ben- 


154  RIGHTS  IN   PROPERTY  AS  AFFECTED  BY   COVERTURE          (Ch.  3 

But  the  presumption  may  be  rebutted.  When  property  is  pur- 
chased in  the  wife's  name  she  may  rebut  the  presumption  by  show- 
ing that  the  purchase  was  made  by  investment  of  her  paraphernal 
or  separate  property.80  And  in  like  manner  the  husband  may  show 
that  he  made  a  purchase  with  his  separate  funds.81  In  either  case 
the  proof,  to  rebut  the  presumption,  must  be  clear.82  It  is  not 
necessary  to  prove  that  property  is  in  fact  the  product  of  the  joint 
efforts  of  husband  and  wife  to  establish  its  character  as  commu- 
nity property.  If  it  is  acquired  after  the  marriage  by  either  alone, 
but  not  in  a  way  excepted  by  the  statute,  it  belongs  to  the  com- 
munity.88 Community  property  is  made  liable  for  community 
debts.84  Though  the  wife  has  as  much  interest  in  the  community 

der,  18  Nev.  361,  4  Pac.  711,  7  Pac.  74 ;  Yesler  v.  Hochstettler,  4  Wash.  349, 
30  Pac.  398;  Hoopes  v.  Mathis,  40  Tex.  Civ.  App.  121,  89  S.  W.  36;  Smith 
v.  Weed,  75  Wash.  452,  134  Pac.  1070;  York  v.  Hilger  (Tex.  Civ.  App.)  84  S. 
W.  1117. 

so  Stauffer  v.  Morgan,  39  La.  Ann.  632,  2  South.  98 ;  Booker  v.  Castillo, 
154  Cal.  672,  98  Pac.  1067. 

si  Estate  of  Higgins,  65  Cal.  407,  4  Pac.  389;  York  v.  Hilger  (Tex.  Civ. 
App.)  84  S.  W.  1117;  Douglas  v.  Douglas,  22  Idaho,  336,  125  Pac.  796. 

82  Morris  v.  Hastings,  70  Tex.  26,  7  S.  W.  649,  8  Am.  St  Rep.  570;  Mor- 
gan v.  Lones,  78  Cal.  58,  20  Pac.  248;  Brusle  v.  Dehon,  41  La.  Ann.  244, 
6  South.  31 ;  Smith  v.  Weed,  75  Wash.  452,  134  Pac.  1070. 

ss  Lake  v.  Bender,  18  Nev.  361,  4  Pac.  731,  7  Pac.  74. 

34  Kerley's  Succession,  18  La.  Ann.  583 ;  Shuey  v.  Adair,  24  Wash.  378,  64 
Pac.  536;  Moor  v.  Moor,  31  Tex.  Civ.  App.  137,  71  S.  W.  794;  Dever  v. 
Selz,  39  Tex.  Civ.  App.  558,  87  S.  W.  891;  Floding  v.  Denholm,  40  Wash* 
463,  82  Pac.  738;  Williamson  v.  McElroy  (Tex.  Civ.  App.)  155  S.  W.  998;- 
McLean  v.  Burginger,  100  Wash.  570,  171  Pac.  518;  Johnson  v.  Garner 
(D.  C.)  233  Fed.  756;  William  v.  Beebe,  79  Wash.  133,  139  Pac.  867.  It 
is  also  generally  liable  for  husband's  debts.  Schuyler  v.  Broughton,  70  Cal. 
282,  11  Pac.  719;  Davis  v.  Compton,  13  La.  Ann.  396;  Lee  v.  Henderson, 
75  Tex.  190,  12  S.  W.  981;  Holt  v.  Empey,  32  Idaho,  106,  178  Pac.  703; 
Ohchoa  v.  Edwards  (Tex.  Civ.  App.)  189  S.  W.  1022.  But  in  Washington 
real  estate  is  exempt,  though  personal  property  is  liable.  Gund  v.  Parke, 
15  Wash.  393,  46  Pac.  408 ;  Ross  v.  Howard,  31  Wash.  393,  72  Pac.  74 ;  Levy 
v.  Brown  (C.  C.)  53  Fed.  568.  But  see  Huyvaerts  v.  Roedtz,  105  Wash.  657, 
178  Pac.  801. 

A  "community  debt"  is  a  liability  made  by  a  husband  during  marriage. 
Word  v.  Colley  (Tex.  Civ.  App.)  143  S.  W.  257.  A  debt  of  the  husband  as 
surety  is  not  a  community  debt.  American  Surety  Co.  v.  Sandberg  (D.  .C.) 
225  Fed.  150,  affirmed  244  Fed.  701,  157  C.  C.  A,  149;  J.  I.  Case  Threshing 
Mach.  Co.  v.  Wiley,  89  Wash.  301,  154  Pac.  437.  Community  property  itf 
not  liable  for  a  debt  created  by  a  tort  of  either  spouse,  or  for  a  debt  not 
for  benefit  of  community.  Floding  v.  Denholm,  40  Wash.  463,  82  Pac.  738; 
Milne  v.  Kane,  64  Wash.  254,  116  Pac.  659,  36  L.  R.  A.  (N.  S.)  88,  Ann. 
Cas.  1913A,  318;  Wilson  v.  Stone,  90  Wash.  365,  156  Pac.  12.  Community 
property  is  liable  for  the  antenuptial  debts  of  the  wife.  Dunlap  v.  Squires 
(Tex.  Civ.  App.)  186  S.  W.  843.  Community  property  is  not  bound  for  the 


§  60)  COMMUNITY  PROPERTY  155 

property  as  the  husband,  and  an  equal  right  to  its  beneficial  use,38 
during  coverture  the  husband  has  the  management  and  control 
of  it,36  and  in  some  states  he  can  assign  or  convey  or  incumb'er  it 
without  the  consent  of  the  wife.37  In  other  states,  he  cannot  do  so 
unless  she  joins  him.38 

payment  of  postnuptial  debts  contracted  by  the  wife  for  the  benefit  of  her 
separate  property.  Hall  v.  Johns,  17  Idaho,  224,  105  Pac.  71. 

ss  Burnham  v.  Hardy  Oil  Co.,  108  Tex.  555,  195  S.  W.  1139,  affirming  judg- 
ment (Tex.  Civ.  App.)  147  S.  W.  330;  Davis  v.  Davis  (Tex.  Civ.  App.)  186 
S.  W.  775;  Ewald  v.  Hufton,  31  Idaho,  373,  173  Pac.  247. 

se-VVarburton  v.  White,  176  U.  S.  484,  20  Sup.  Ct.  404,  44  L.  Ed.  555; 
Schaadt  v.  Mutual  Life  Ins.  Co.,  2  Cal.  App.  715,  84  Pac.  249;  Spreckels  v. 
Spreckels,  116  Cal.  339,  48  Pac.  228,  36  L.  R.  A.  497,  58  Am.  St.  Rep.  170; 
Newman  v.  Newman  (Tex.  Civ.  App.)  86  S.  W.  635 ;  Merriam  v.  Patrick,  103 
Wash.  442,  174  Jrac.  641;  Briggs  v.  McBride  (Tex.  Civ.  App.)  190  S.  W. 
1123;  Bowers  v.  Good,  52  Wash.  384,  100  Pac.  848.  Where  community 
property  of  husband  and  wife  became  a  valid  homestead,  it  thereupon  ceased 
to  be  community  property,  and  the  husband's  right  of  absolute  control 
over  the  same,  as  authorized  by  Civ.  Code,  §  172,  immediately  ceased.  Yard- 
ley  v.  San  Joaquin  Valley  Bank,  3  Cal.  App.  651,  86  Pac.  978. 

ST  Spreckels  v.  Spreckels,  116  Cal.  339,  48  Pac.  228,  36  L.  R.  A.  497,  58 
Am.  St.  Rep.  170;  Strauss  v.  Canty,  169  Cal.  101,  145  Pac.  1012;  Wits- 
Keets-Poo  v.  Rowton,  28  Idaho,  193,  152  Pac.  1064;  First  Nat.  Bank  v. 
Meyers,  39  Nev.  235,  150  Pac.  308,  40  Nev.  284,  161  Pac.  929;  Watts  v. 
Snodgrass  (Tex.  Civ.  App.)  152  S.  W.  1149;  Simon  v.  Meaux,  143  La.  760, 
79  South.  330;  Wilson  v.  Wilson,  6  Idaho,  597,  57  Pac.  708;  Cotton,  v. 
Cotton,  34  La.  Ann,  858;  Schaadt  v.  Mutual  Life  Ins.  Co.  of  New  Yoi<k, 
2  Cal.  App.  715,  84  Pac.  249;  Zuckerman  v.  Munz,  48  Tex.  Civ.  App.  337, 
107  S.  W.  78;  Sweeney  v.  Taylor  Bros.,  41  Tex.  Civ.  App.  365,  92  S.  W. 
442.  Under  Civ.  Code,  §  172,  a  husband's  deed  of  community  property,  made 
without  consideration  is  not  binding  upon  his  wife.  Winchester  v.  Wint- 
Chester,  175  Cal.  391,  165  Pac.  965.  Although  by  statute  the  husband  is 
made  manager  with  power  to  sell  and  dispose  of  community  personalty, 
he  cannot  waste  it  or  give  it  away,  especially  to  evil  associates.  Marston 
v.  Rue,  92  Wash.  129,  159  Pac.  Ill,  129. 

A  wife,  with  the  authority  and  consent  of  her  husband,  may  make  a  valid 
conveyance  of  community  property,  though  the  husband  does  not  join  there- 
in. Roos  v.  Basham,  41  Tex.  Civ.  App.  551,  91  S.  W.  656.  The  husband, 
being  by  statute  the  managing  head  of  the  family  appointed  to  make  con- 
veyances of  community  property,  a  deed  by  the  wife  alone  is  void,  unless 
the  facts  exist  which  create  an  exception  in  extreme  cases.  Lasater  v. 
Jamison  (Tex.  Civ.  App.)  203  S.  W.  1151;  McAlpine  v.  Kohler  &  Chase,  96 
Wash.  146,  164  Pac.  755.  Where  a  husband  abandoned  his  wife  and  she 
and  children  of  the  marriage  are  in  necessitous  circumstances,  she  may, 
without  the  husband's  joinder  or  consent,  convey  community  property  pass- 
ing good  title.  Hadnot  v.  Hicks  (Tex.  Civ.  App.)  198  S.  W.  359.  A  wife  may, 
if  reasonable  prudence  require,  sell  perishable  personalty  of  the  commu- 
nity in  case  of  husband's  absence.  Marston  v.  Rue,  92  Wash.  129,  159 
Pac.  111. 

ss  Kimble  v.  Kimble,  17  Wash.  75,  49  Pac.  216;  Olson  v.  Springer,  60  Wash. 
77,  110  Pac.  807. 


156       CONTRACTS,  CONVEYANCES,  AND  QUASI  CONTRACTS     (Ch.  4 


CHAPTER  IV 

CONTRACTS,  CONVEYANCES,  ETC.,  AND  QUASI  CONTRACTUAL  OBLI- 
GATIONS 

\ 

61.  Contracts  of  Wife. 

62,  63.  Wife  as  a   Sole  Trader. 

64-67.  Conveyances,   Sales,   and   Gifts  by   Wife. 

68.  Contracts  of  Husband. 

69,  70.  Contracts  by  Wife  as  Husband's  Agent. 

71.  Husband's  Liability  for  Wife's  Funeral  Expenses. 

72.  Husband's  Liability  for  Wife's  Antenuptial  Debts. 

CONTRACTS  OF  WIFE 

61.  Except  in  the  following  cases,  a  married  woman  has  no  power 
or  capacity  to  contract.  Her  attempted  contracts  are  not 
voidable  merely,  but  are  absolutely  void. 

EXCEPTIONS— (a)  She  can  contract  and  sue  and  be  sued  as  a 
feme  sole,  even  at  common  law,  when  her  husband  has 
been  banished,  has  abjured  the  realm,  is  a  nonresident 
alien,  or  has  been  transported. 

(b)  In  equity,  with  the  consent  of  her  husband,  she  may  carry  on 

a  separate  trade  or  business,  and  contract  with  reference 
thereto. 

(c)  In  equity  she  may  contract  with  reference  to  her  separate 

estate,  so  as  to  bind  it,  but  not  so  as  to  bind  herself  per- 
sonally. 

(d)  Under  modern  statutes,  her  disability  to  contract  has  been 

removed  to  a  greater  or  less  extent  in  the  different  states. 

As  a  result  of  the  common-law  principle  that  the  legal  existence 
of  a  woman  is  lost  during  coverture,  the  attempted  contracts  of  a 
married  woman  are,  with  few  exceptions,  absolutely  void.  She 
cannot,  during  coverture,  enter  into  a  contract  that  will  bind  her 
personally,  either  during  coverture  or  after  her  coverture  has  been 
determined  by  death  or  divorce ;  and  the  rule  is  the  same  at  law  and 
in  equity.1  In  a  Delaware  case  a  married  woman  sold  certain  lands 

12  Kent,  Comm.  150;  Sockett  v.  Wray,  4  Brown,  Ch.  483,  4S7;  Kenge  v. 
Delavall,  1  Vern.  326;  Ross  v.  Singleton,  1  Del.  Ch.  149,  12  Am.  Dec.  86,; 
Marshall  v.  Rutton,  8  Term  R.  547;  Fairhurst  v.  Liverpool  Adelphi  Loan 
Ass'n,  23  Law  J.  Exch.  163;  Pittam  v.  Foster,  1  Barn.  &  C.  248;  Lowell  v. 


§  61)  CONTRACTS   OP   WIFE  157 

to  another,  both  she  and  the  purchaser  erroneously  believing  that 
her  husband  was  dead,  the  probability  being  that  such  was  the  case. 
After  the  husband's  death  the  purchaser  brought  a  suit  in  equity  to 
compel  the  woman  to  make  him  a  deed  to  the  land,  and  to  restrain 
her  from  enforcing  a  judgment  in  ejectment  which  she  had  ob- 
tained against  him.  It  was  held  that  he  was  not  entitled  to  relief, 
even  though  the  purchase  was  in  good  faith,  and  though  he  had 
made  valuable  improvements  on  the  land.  The  contract,  being  by  a 
married  woman,  it  was  said,  was  absolutely  void,-  and  a  court  of 
equity  could  not  give  validity  to  a  contract  void  at  law.2  She  can- 
not be  rendered  liable  on  her  attempted  contracts,  either  directly  or 
indirectly.  She  cannot,  therefore,  be  estopped  to  attack  their  valid- 
ity by  reason  of  her  conduct  in  entering  into  them,  or  by  her  acts  or 
admissions  in  relation  to  them.  To  hold  her  thus  estopped  would 
be  to  indirectly  enforce  her  contracts.3 

New  Promise  after  Death  of  Husband  or  Divorce 

Since  the  contracts  of  a  married  woman  during  coverture  are  ab- 
solutely void,  on  principle  they  should  have  no  effect  whatever.  By 
the  weight  of  authority,  therefore,  a  promise  by  a  married  woman, 
after  her  coverture  has  been  determined  either  by  death  or  divorce, 
to  perform  a  promise  given  by  her  during  coverture,  is  void  for  want 
of  consideration.  In  other  words,  she  cannot,  after  the  death  of  her 
husband  or  a  divorce,  ratify  a  contract  entered  into  by  her  during 
coverture,  and  thereby  render  it  binding  upon  her.4  Some  of  the 

Daniels,  2  Gray  (Mass.)  161,  61  Am.  Dec.  448 ;  Bemis  v.  Call,  10  Allen  (Mass.) 
512 ;  Pierce  v.  Chace,  108  Mass.  254,  259 ;  Butler  v.  Buckingham,  5  Day 
(Conn.)  492,  5  Am.  Dec.  174 ;  Kelso  v.  Tabor,  52  Barb.  (N.  Y.)  125 ;  Hollis  v. 
Francois,  5  Tex.  195,  51  Am.  Dec.  760;  Norris  v.  Lantz,  18  Md.  260;  Glidden 
v.  Strupler,  52  Pa.  400;  Love  v.  Love  (Pa.)  12  Atl.  498;  Tracy  v.  Keith,  11 
Allen  (Mass.)  214;  Farrar  v.  Bessey,  24  Vt.  89,  Cooley  Cas.  Persons  and 
Domestic  Relations,  79;  Rodemeyer  v.  Rodman,  5  Iowa,  426;  Fors/th  v. 
Barnes,  228  111.  326,  81  N.  E.  1028,  10  Ann.  Cas.  710 ;  Hall  v.  Johns,  17  Idaho, 
224,  105  Pac.  71;  French  v.  Slack,  89  Vt.  514,  96  Atl.. 6;  Pond  v.  Carpenter, 
12  Minn.  430  (Gil.  315).  See,  also,  Burns  v.  Cooper,  140  Fed.  273,  72  C.  C.  A. 
25. 

2  Ross  v.  Singleton,  1  Del.  Ch.  149,  12  Am.  Dec.  86. 

s  See  the  cases  above  cited.  And  see  Pierce  v.  Chace,  108  Mass.  254,  259 : 
Miles  v.  Lingerman,  24  Ind.  385 ;  Drury  v.  Foster,  2  Wall.  24,  17  L.  Ed.  780 ; 
Merriam  v.  Boston,  C.  &  F.  Railroad  Co.,  117  Mass.  241. 

*  Meyer  v.  Haworth,  8  Adol.  &  El.  467 ;  Lloyd  v.  Lee,  1  Strange,  94 ;  Len- 
nox v.  Eldred,  1  Thomp.  &  C.  (N.  Y.)  140;  Hayward  v.  Barker,  52  Vt.  429, 
36  Am.  Rep.  762;  Hubbard  v.  Bugbee,  58  Vt.  172,  2  Atl.  594;  Putnam  v. 
Tennyson,  50  Ind.  456;  Candy  v.  Coppock,  85  Ind.  594;  Porterfield  v.  But- 
ler, 47  Miss.  165,  12  Am.  Rep.  329 ;  Clark,  Cont.  203,  and  cases  there  cited. 


158       CONTRACTS,  CONVEYANCES,  AND  QUASI  CONTRACTS     (Ch.  4 

courts  have  sustained  such  a  ratification  on  the  ground  that  she  is 
under  a  moral  obligation  to  perform  the  contract,  and  that  this  ob- 
ligation is  a  sufficient  consideration  to  support  her  promise  after 
coverture.8  This,  however,  is  directly  contrary  to  the  well-settled 
rule  of  the  law  of  contract  that  a  mere  moral  obligation  is  no  con- 
sideration for  a  promise.8 

Exceptions  to  the  Rule  of  Common  Law 

There  were  exceptions  to  the  rule  at  common  law  in  regard  to 
contracts  of  married  women  in  cases  where  the  husband  had  been 
banished,  or  had  abjured  the  realm,  or  was  a  nonresident  alien,  or 
was  under  sentence  of  transportation  or  of  penal  servitude  for  a 
term  of  years  or  for  life.  In  these  cases  he  was  regarded  as  civilly 
dead,  and  the  wife  had  the  power  to  contract,  and  could  sue  and  be 
sued,  as  a  feme  sole.7  These  doctrines  have  been  adopted  with 
some  modifications  in  this  country.8  It  has  been  very  generally 
held  that  a  married  woman  has  power  to  contract,  and  to  sue  and  be 
sued  in  relation  to  her  contracts,  where  her  husband  has  abandoned 
her  and  the  country ;  and  residence  in  another  state,  with  intention 
to  abandon  her,  has  been  regarded  as  equivalent  to  residence  in  a 
foreign  country}9  The  rule  has  even  been  applied  in  cases  where 
the  husband  has  abandoned  his  wife,  without  leaving  the  state.10 
To  give  rise  to  the  exception,  the  husband  must  have  renounced 
all  his  marital  rights  and  relations.11 

*  Lee  v.  Muggeridge,  5  Taunt  36;    Brown  v.  Bennett,  75  Pa.  420;    Sharp- 
less'  Appeal,  140  Pa.  63,  21  Atl.  239 ;    Goulding  v.  Davidson,  26  N.  Y.  604 ; 
Hubbard  v.  Bugbee,  55  Vt.  506,  45  Am.  Rep.  637. 

e  Clark,  Cont.  180,  203. 

*  1  Bl.  Comm.  443 ;   2  Kent,  Comm.  154  (where  the  question  is  considered 
at  length,  and  the  English  cases  are  collected  and  discussed) ;   Carrol  v.  Blen- 
cow,  4  Esp.  27 ;    Belknap  v.  Lady  Weyland,  Co.  Litt.  132b,  133a ;    Derry  v. 
Duchess  of  Mazarine,  1  Ld.  Raym.  147. 

s  Gregory  v.  Paul,  15  Mass.  31 ;  Rhea  v.  Rhenner,  1  Pet.  105,  7  L.  Ed.  72 ; 
Robinson  v.  Reynolds,  1  Aikens  (Vt.)  174,  15  Am.  Dec.  673,  and  cases  here- 
after cited. 

»  Gregory  v.  Paul,  15  Mass.  31 ;  Abbot  v.  Bayley,  6  Pick.  (Mass.)  89 ;  Os- 
born  v.  Nelson,  59  Barb.  (N.  Y.)  375;  Rhea  v.  Rhenner,  1  Pet.  105,  7  L.  Ed. 
72 ;  Arthur  v.  Broadnax,  3  Ala.  557,  37  Am.  Dec.  707 ;  Krebs  v.  CXGrady,  23 
Ala.  727,  58  Am.  Dec.  312 ;  Smith  v.  Silence,  4  Iowa,  321,  66  Am.  Dec.  137 ; 
Rose  v.  Bates,  12  Mo.  30 ;  Rosenthal  v.  Mayhugh,  33  Ohio  St  155 ;  Starrett 
v.  Wynn,  17  Serg.  &  R.  (Pa.)  130,  17  Am.  Dec.  654;  Bean  v.  Morgan,  4  Mc- 
Cord  (S.  C.)  148. 

10  Love  v.  Moynehan,  16  111.  277,  63  Am.  Dec.  306. 

nAyer  v.  Warren,  47  Me.  217;  Gregory  v.  Pierce,  4  Mete.  (Mass.)  478; 
Beckman  v.  Stanley,  8  Nev.  257. 


§  61)  CONTRACTS  OF   WIPE  159 

Exceptions  in  Equity 

Courts  of  equity  recognize  certain  exceptions  to  the  rule  that  a 
married  woman  cannot  enter  into  a  contract.  Thus  in  equity,  as 
will  be  seen  in  a  subsequent  section,  a  wife  may,  with  the  consent 
of  her  husband,  carry  on  business  as  a  sole  trader,  and  may  contract 
with  reference  to  her  separate  trade  or  business.12 

As  was  stated  in  a  preceding  chapter,  in  equity  a  married  woman 
may  acquire  and  hold  an  estate  to  her  sole  and  separate  use.  In  re- 
lation to  this  estate,  she  may  to  some  extent  make  contracts  which 
a  court  of  equity  will  enforce  against  the  separate  property.  She 
cannot,  however,  even  in  equity,  much  less  at  law,  make  a  contract 
in  relation  to  such  separate  estate  which  will  be  binding  upon  her 
personally.  The  extent  to  which  a  married  woman  may  contract 
so  as  to  bind  her  equitable  separate  estate  will  be  shown  at  some 
length  in  a  subsequent  chapter.18 

Under  Modern  Statutes 

In  recent  years  the  Legislatures  of  the  different  states  have  en- 
acted laws  removing  to  a  greater  or  less  extent  the  common-law  dis- 
ability of  a  married  woman  to  contract.14  In  some  states  the  dis- 
ability has  been  wholly  removed,  so  that  she  can  now  contract  and 
sue  and  be  sued  as  a  feme  sole ;  while  in  others  the  disability  has 
been  only  partially  removed,  and  she  can  contract  only  to  a  limited 
extent.15  In  most  states  she  can  contract  with  her  husband,16  but 

12  Post,  p.  162.  18  Post,  p.  189. 

J  *  Such  statutes  have  no  retroactive  effect  and  do  not  validate  contracts 
made  before  their  enactment.  In  re  Scully's  Estate,  199  Mich.  181,  165  N.  W. 
688;  Akin  v.  Thompson  (Tex.  Civ.  App.)  196  S.  W.  625. 

IB  Code  Ala.  1907,  §§  4492,  4493  (but  she  may  not  contract  as  surety,  sec- 
tion 4497) ;  Kurd's  Rev.  St.  111.  1908,  c.  86,  §  6 ;  Code  Pub.  Gen.  Laws,  Md. 
1904,  art.  45,  §  5 ;  Rev.  St.  Mo.  1899,  §  4335  (Ann.  St.  1906,  p.  2378) ;  Bates' 
Ann.  St  Ohio  1906,  §  3112;  B.  &  C.  Comp.  Or.  §  5249;  Pierce's  Code  Wash. 
§.  3873  (Bellinger's  Ann.  Codes  &  St.  §  4504) ;  Major  v.  Holmes,  124  Mass.  108 ; 
Caldwell  v.  Blanchard,  191  Mass.  489,  77  N.  E.  1036;  Young  v.  Hart,  101 
Va.  480,  44  S.  E.  703 ;  Dempsey  v.  Wells,  109  Mo.  App.  470,  84  S.  W.  1015. 
In  a  few  states  it  seeins  to  be  the  rule  that  the  common-law  disability  to 
contract  remains  except  as  removed  by  statute.  Meier  &  Frank  Co.  v. 
Bruce,  30  Idaho,  732,  168  Pac.  5;  Fadden  v.  Fadden,  92  Vt.  350,  103  AtL 
1020.  But  the  better  rule  seems  to  be  that  her  capacity  to  contract  is  the 
rule,  except  as  restricted  by  statute.  Bartholomew  v.  Allentown  Nat  Bank, 
260  Pa.  509,  103  Atl.  954;  Townsend  v.  Huntzinger,  41  Ind.  App.  223,  83 
N.  E.  619 ;  Bogie  v.  Nelson,  151  Ky.  443,  152  S.  W.  250.  A  married  woman 
has  the  same  status  as  her  husband  as  to  the  right  to  contract.  Farmers' 
State  Bank  of  Ada  v.  Keen  (Okl.)  167  Pac.  207.  She  may  contract  for  her 

16  See  note  16  on  following  page. 


160       CONTRACTS,  CONVEYANCES,  AND  QUASI  CONTRACTS     (Ch.  4 

in  some  she  cannot.17  In  some  states  she  is  prohibited  from  enter- 
ing into  contracts  of  suretyship,18  or  to  convey  land.1'  In  all  the 

services.  Gerdes  v.  Niemeyer,  193  111.  App.  574;  Elliott  v.  Atkinson,  45  Ind. 
App.  290,  90  N.  E.  779 ;  Gnrver  v.  Thoman,  15  Ariz.  38,  135  Pac.  724.  And 
for  necessaries.  Adair  v.  Areudt,  126  Ark.  246,  190  S.  W.  445:  Wilder  v. 
Brokaw,  141  App.  Div.  811,  126  N.  Y.  Supp.  932.  See  ante,  p.  126.  She  may 
appoint  an  agent.  Barber  v.  Keeling  (Tex.  Civ.  App.)  204  S.  W.  139;  Baker 
v.  Thompson,  214  Mo.  500.  114  S.  W.  497.  In  Minnesota  she  can  make  all 
contracts  as  if  sole,  except  contracts  to  convey  her  homestead.  Rev.  Laws 
1905,  §  3607.  The  capacity  of  a  married  woman  to  contract  does  not  depend 
on  her  holding  separate  property.  Barrows  v.  Dugan's  Estate,  88  Vt.  441, 
92  Atl.  927.  A  wife's  coverture  is  no  defense  to  a  note  executed  by  her  as 
maker.  McDaniel  v.  Jonesboro  Trust  Co.,  127  Ark.  61,  191  S.  W,  916.  Under 
Pub.  St  N.  H.  1901,  c.  176,  §  2,  a  married  woman  is  liable  on  a*  contract 
made  with  third  persons  for  the  benefit  of  a  partnership  composed  of  herself 
and  her  husband.  Orr  &  Rolfe  Co.  v.  Merrill,  78  N.  H.  175,  98  Atl.  303. 
See,  also,  Freret  v.  Taylor,  119  La.  307,  44  South.  26,  121  Am.  St.  Rep.  522, 
holding  that  where  a  married  woman  is  authorized  under  the  law  of  her 
domicile  to  enter  into  a  contract  as  a  feme  sole,  and  to  sue  and  be  sued  with- 
out her  husband  being  joined  as  a  party,  her  status  as  to  contracting  and  as 
to  suing  and  being  sued  accompanies  her  to  this  state  unless  controlled  by 
considerations  of  public  policy. 

i«Crowley  v.  Crowley,  167  Mo.  App.  414,  151  S.  W.  512;  Leimgruber  v. 
Leimgruber,  172  Ind.  370,  86  N.  E.  73,  88  N.  E.  593 ;  Perkins  v.  Blethen,  107 
Me.  443,  78  Atl.  574,  31  L.  R,  A.  (N.  S\)  1148 ;  Tuttle  v.  Shutts,  43  Colo.  534, 
96  Pac.  260;  Krouse  v.  Krouse,  48  Ind.  App.  3,  95  N.  E.  262;  Coleman  v. 
Coleman,  142  Ky.  36,  133  S.  W.  1003 ;  Potter  v.  Mobley  (Tex.  Civ.  App.)  194 
S.  W.  205.  But  such  contracts  will  be  carefully  scrutinized.  Koopman  v. 
Mansolf,  51  Mont.  48,  149  Pac.  491;  Leimgruber  v.  Leimgruber,  72  Ind.  370, 
86  N.  E.  73,  88  N.  E.  593.  It  was  held  in  Appeal  of  Spitz,  56  Conn.  184,  14 
Atl.  776,  7  Am.  St.  Rep.  303,  that  the  provision  of  the  Connecticut  statute 
(Gen.  St.  1902,  §  4545)  declaring  that  a  married  woman  may  contract  with 
third  persons  does  not  prohibit  contracts  with  her  husband.  The  wife  had 
the  right  in  equity  to  contract  with  her  husband,  and  as  the  statute  is  silent 
on  the  subject  the  right  is  not  taken  away.  She  may  enter  into  a  partnership 
contract  with  her  husband.  Butler  v.  Frank,  7  Ga.  App.  655,  67  S.  E.  884; 
Jones  v.  Joaes,  99  Miss.  600,  55  South.  361.  Wife,  loaning  proceeds  of  her 
separate  property  to  her  husband,  becomes  one  of  his  creditors,  and  her  rights 
are  the  same  as  those  of  any  other  creditor.  Bates  v.  Papesh,  30  Idaho, 
529,  166  Pac,  270. 

A  wife  after  marriage  has  the  same  capacity  to  contract  with  her  husband 
that  she  had  before,  and  maj'  enforce  such  contract  by  an  action  at  law.  Mc- 
Dowell v.  McDowell,  37  N.  D.  367,  164  N.  W.  23;  Hendrickson  v.  Hendrickson, 
19S  111.  App.  442 ;  Regal  Realty  &  Investment  Co.  v.  Gallagher  (Mo.)  188  S.  W. 
151. 

IT  Rev.  Laws  Mass.  1902,  c.  153,  §  2;  Pub.  St.  N.  H.  1901,  c.  176,  §  2; 
Spurlock  v.  Spurlock,  SO  Ark.  37,  96  S.  W.  753;  Crosby  v.  Clem,  209  Mass. 
193,  95  N.  E.  297.  The  right  of  a  married  woman  to  enter  into  a  partnership 
contract  with  her  husband  is  denied  in  some  cases.  See  Haggett  V.  Hurley, 
01  Me.  542,  40  Atl.  561,  41  L.  R.  A.  362 ;  Voss  v.  Sylvester,  203  Mass.  233,  89 

",  «  See  notes  18  and  19  on  following  page. 


§  61)  CONTRACTS  OF   WIFE  161 

states  statutes  have  been  enacted  allowing  a  married  woman  to  ac- 
quire and  hold  property  as  her  separate  estate,  and  under  these 
statutes  she  has  more  or  less  general  power  to  contract  in  relation 
to  her  separate  estate.  The  effect  of  these  statutes  will  be  con- 
sidered in  a  separate  chapter.20  It  is,  however,  generally  held  that 
such  statutes  do  not,  of  themselves,  give  married  women  unlimited 
capacity  to  contract.21 

N.  B.  241 ;  People's  Trust  Co.  v.  Merrill,  78  N.  H.  329,  99  Atl.  650.  Except  as 
modified  by  Act  No.  94  of  1916,  law  of  Louisiana  prohibits  all  contracts  be- 
tween husband  and  wife,  including  those  entered  into  while  they  are  tem- 
porarily in  another  jurisdiction.  Marks  v.  Loewenberg,  143  La.  196,  78  South. 
444. 

is  Code  Ala.  1907,  §  4497;  Code  Ga.  1895,  §§  2488,  2492;  Burns'  Ann.  St. 
Ind.  1914,  §§  7851,  7855 ;  Ky.  St.  1903,  §  2127 ;  Pub.  St.  N.  H.  1901,  c.  176,  § 
2;  P.  &  L.  Dig.  Pa.  p.  2890,  par.  2.  See,  also,  Bank  of  Commerce  v.  Baldwin, 
14  Idaho,  75,  93  Pac.  504,  17  L.  R.  A.  (N.  S.)  676;  Indianapolis  Brewing  Co. 
v.  Belinke,  41  Ind.  App,  288,  81  N.  E.  119;  Goldsmith  Bros.  Smelting  & 
Refining  Co.  v.  Moore,  108  Ark.  362,  157  S.  W.  733 ;  Thompson  v.  Wilkinson, 
9  Ga,  App.  367,  71  S.  E.  678;  Baker  v.  Owensboro  Savings  Bank  &  Trust 
Co.'s  Receiver,  140  Ky.  121,  130  S.  W.  969;  Keystone  Brewing  Co.  v.  Var- 
zaly,  39  Pa.  Super.  Ct.  155;  Wilson  v.  Dearborn  (Tex.  Civ.  App.)  179  S.  W. 
1102,  denying  rehearing  174  S.  W.  296;  Bryant  v.  Jones,  183  Ky.  298,  209 
S.  W.  30;  Milton  v.  Set/e,  146  Ga.  26,  90  S.  E.  469.  In  Indiana  the  statute 
confers  on  married  women  power  to  contract  as  if  sole,  except  that  she  can- 
not bind  herself  as  surety  or  convey  her  real  estate,  unless  her  husband  joins 
in  the  conveyance.  Townsend  v.  Huntzinger,  41  Ind.  App.  223,  83  N.  E.  619; 
Kennedy  v.  Swisher,  34  Ind.  App.  676,  73  N.  E.  724;  Anderson  v.  Citizens' 
Nat.  Bank,  38  Ind.  App.  190,  76  N.  E.  811 ;  Isphording  v.  Wolfe,  36  Ind.  App. 
250,  75  N.  E.  598;  Ft.  Wayne  Trust  Co.  v.  Sihler,  34  Ind.  App.  140,  72  N.  E. 
494 ;  Field  v.  Campbell,  164  Ind.  389,  72  N.  E.  260, 108  Am.  St.  Rep.  301.  But  the 
statute  prohibiting  a  married  woman  to  bind  herself  as  surety  does  not  ren- 
der the  enforcement,  in  the  courts  of  Indiana,  of  an  Illinois  contract  of  sure- 
tyship entered  into  by  a  married  woman  residing  in  that  state,  which  is 
valid  by  the  laws  thereof,  against  public  policy.  Garrigue  v.  Keller,  164 
Ind.  676,  74  N.  E.  523,  69  L.  R.  A.  870,  108  Am.  St.  Rep.  324.  She  may  not 
become  surety  for  her  husband.  Grasman  v.  Union  Trust  Co.,  228  Fed.  610, 
143  C.  C.  A.  132,  Ann.  Cas.  1917B,  613,  affirmed  245  U.  S.  412,  38  Sup.  Ct. 
147,  62  L.  Ed.  368  (construing  Texas  statute) ;  Elkins  v.  Bank  of  Henry,  180 
Ala.  18,  60  South.  96;  First  Nat.  Bank  v.  Bertoli,  87  Vt  297,  89  Atl.  359, 
Ann.  Cas.  1917B,  590.  But  see  Royal  v.  Southerland,  168  N.  C.  405,  84  S.  E. 
708,  Ann.  Cas.  1917B,  623,  and  Duty  v.  Sprinkle,  64  W.  Va.  39,  60  S.  E.  882, 
holding  that  a  wife  may  bind  herself  for  her  husband's  debt.  Under  Rev. 
Laws  Okl.  1910,  §  3353,  a  married  woman  may  become  surety  on  an  appearance 
bond  under  the  same  conditions  as  a  feme  sole.  Temple  v.  State  (Okl.)  178 
Pac.  113. 

i»  Rev.  Laws  Minn.  1905,  §  3607.    And  see  post,  p.  -202. 

20  Post,  p.  -203. 

21  Yale  v.  Dederer,  22  N.  Y.  450,  78  Am.  Dec.  216;    Conway  v.  Smith,  13 
Wis.  140;   Carpenter  v.  Mitchell,  50  111.  470;    Bank  of  Commerce  v.  Baldwin, 
14  Idaho,  75,  93  Pac.  5d4,  17  L,  R.  A.  (X.  S.)  676 ;   Union  State  Bank  of  Har- 

TIFF.P.&  D.REL.(3o  ED.)— 11 


162       CONTRACTS,  CONVEYANCES,  AND  QUASI  CONTRACTS     (Ch.  4 


WIFE  AS  A  SOLE  TRADER 

62.  In  equity,  by  agreement  with  her  husband,  a  wife  may  cany 

on  a  separate  trade  or  business,  and  contract  with  refer- 
ence thereto,  and  the  stock  in  trade  and  profits  will  be 
treated  as  her  separate  property. 

(a)  As  against  the  husband,  though  the  agreement  was  volun- 

tary. 

(b)  As  against  the  husband's  creditors,  if  the  agreement  was  bas- 

ed on  a  valuable  consideration. 

(c)  The  husband  will  be  liable  for  the  debts  of  his  wife's  sepa- 

rate business,  when  it  is  conducted  with  his  express  con- 
sent, or  where  his  consent  may  be  implied;  as  where  he 
takes  part  in  its  management,  or  shares  in  its  profits.  But 
he  is  not  liable  if  it  is  conducted  without  his  consent,  ex- 
press or  implied. 

63.  In  most  states  the  right  of  married  women  to  engage  in  busi- 

ness is  controlled  by  statute. 

While  at  common  law  a  wife  could  make  no  contracts,  and  her 
husband  was  entitled  to  her  separate  earnings,  she  was  nevertheless, 
by  the  aid  of  equity,  enabled  to  carry  on  a  separate  trade  or  busi- 
ness. When  a  husband  has  agreed  with  his  wife  that  she  may  carry 
oh  a  separate  trade  for  her  own  use  and  benefit,  equity  will  protect 
the  wife's  interests,  and  treat  the  husband,  when  no  trustees  have 
been  appointed,  as  trustee  for  the  wife  as  to  her  stock  in  trade  and 
the  profits  of  the  business.22  Where  the  agreement  is  supported  by 
a  valuable  consideration,  it  will  be  supported  in  favor  of  the  wife 
even  against  her  husband's  creditors.23  If  the  agreement  is  entered 
into  before  marriage,  and  in  consideration  thereof,  the  marriage  is 

vard  v.  McKelvie,  91  Neb.  728,  136  N.  W.  1021 ;  Williams  v.  Hugunin,  69  111. 
214,  18  Am.  Rep.  607 :  Palliser  v.  Gurney,  E.  R.  19  Q.  B.  Div.  519 ;  Thompson 
v.  Minnich,  227  Til.  430,  81  N.  E.  336  (holding  that  a  married  woman  could 
not  by  virtue  of  the  statute  contract  to  adopt  a  child  and  provide  for  it 
out  of  her  estate).  See,  also,  post,  p.  203. 

22Macq.  Husb.  &  W.  328;  Story,  Eq.  Jur.  §  1387;  Ashworth  v.  Outram, 
5  Ch.  Div.  923;  Partridge  v.  Stocker,  36  Vt.  108,  84  Am.  Dec.  664;  James  v. 
Taylor,  43  Barb.  (N.  Y.)  530;  Penn  v.  Whitehead,  17  Grat.  (Va.)  503,  94  Am. 
Dec.  478.  By  the  "custom  of  London"  a  wife  could  trade  as  a  feme  sole.  2 
Roper,  Husb.  &  W.  124. 

23  Story,  Eq.  Jur.  §§  1385-1387 ;  2  Roper,  Husb.  &  W.  171 ;  Penn  v.  White- 
head,  17  Grat.  (Va.)  503,  94  Am.  Dec.  478.  , 


§§   62-63)  WIFE   AS   A   SOLE   TEADEE  163 

a  valuable  consideration.  If  it  is  not  entered  into  until  after  mar- 
riage, there  must  be  some  other  consideration.  The  husband's 
agreement  may  be  either  in  express  words  or  may  be  established 
from  his  acquiescence  in  his  wife's  acts.24  He  may,  however,  with- 
draw his  consent  at  any  time,  unless  supported  by  a  valuable  con- 
sideration, and  assert  his  common-law  rights.25  Where,  under  such 
agreement,  the  property  is  vested  in  a  trustee,  it  will  be  supported 
in  law  as  well  as  in  equity.26 

While  the  wife  may  conduct  a  separate  business  under  an  agree- 
ment with  her  husband  which  would  be  supported  in  equity  as 
against  her  husband,  nevertheless  the  debts  incurred  in  such  busi- 
ness, although  contracted  in  the  name  of  the  wife,  are  his  debts, 
and  he  is  liable  for  them; 27  and  where  there  is  no  agreement,  if  he 
participates  .in  the  benefits  of  the  business,28  or  assists  her  in  the 
management  of  it,  he  thereby  ratifies  her  authority  to  incur  debts, 
and  renders  himself  liable  for  them.29  But  when  he  has  no  con- 
nection with  the  business,  and  there  is  no  evidence  that  he  ever 
assented  to  it,  he  is  not  liable  for  debts  contracted  by  the  wife  in 
its  management.30 

Under  Modern  Statutes 

The  wife's  right  to  conduct  a  separate  Business  is  generally  con- 
firmed and  regulated  by  statute  in  the  various  states.31  In  some 
instances  married  women  are  permitted  to  trade  as  if  unmarried,32 
while  in  others  her  capacity  to  act  as  sole  trader  is  limited  and 

2*Ashworth  v.  Outram,  5  Ch.  Div.  923;  Partridge  v.  Stocker,  36  Vt.  108, 
84  Am.  Dec.  664;  Tillman  v.  Shackleton,  15  Mich.  447,  93  Am.  Dec.  198; 
Jones  v.  Wocher,  90  Ky.  230,  13  S.  W.  911.  . 

25  Cropsey  v.  McKinney,  30  Barb.  (N.  Y.)  47;   Conkling  v.  Doul,  67  111.  355. 

26  Story,  Eq.  Jur.  §§  1385,  1386. 

27  Oropsey  v.  McKinney,  30  Barb.   (N.  Y.)  47;    Lovett  v.  Robinson,  7  How. 
Prac.  (N.  Y.)  105. 

23  Macq.  Husb.  &  W.  333 ;   Petty  v.  Anderson,  3  Bing.  170. 

29  Curtis  v.  Engel,  4  N.  Y.  Super.  Ct.  287. 

so  2  Roper,  Husb.  &  W.  c.  18,  §  4 ;  Tuttle  v.  Hmg,  46  Mo.  38,  2  Am.  Rep. 
481;  Jenkins  v.  Flinn,  37  Ind.  349. 

si  The  Legislature  may  declare  when  and  how  a  married  woman  may  be- 
come a  free  trader.  Scott-Sparger  Co.  v.  Ferguson,  152  N.  C.  346,  67  S.  E. 
750. 

32Trieber  v.  Stover,  30  Ark.  727;  Tallman  v.  Jones,  13  Kan.  438;  Wayne 
v.  Lewis  (Pa.)  16  Atl.  862;  Norwood  v.  Francis,  25  App.  D.  C.  463,  4  Ann. 
Cas.  865;  Elliott  v.  Hawley,  34  Wash.  585,  76  Pac/93,  101  Am.  St.  Rep.  1016; 
Scott  v.  Cotten,  91  Ala.  623,  8  South.  783.  A  married  woman  has  the  same 
status  as  her  husband  as  to  the  right  to  engage  in  business.  Farmers'  State 
Bank  of  Ada  v.  Keen  (Okl.)  167  Pac.  207. 


164       CONTRACTS,  CONVEYANCES,  AND  QUASI  CONTRACTS     (Ch.  4 

conditions  imposed  requiring  the  consent  of  the  husband,  judicial 
permission,  or  the  like.38  The  general  property  acts  do  not  as  a  rule 
authorize  her  to  engage  in  trade  or  business  on  her  own  account, 
except  in  so  far  as  she  is  allowed  to  contract  in  relation  to  her  sepa- 
rate property.34 

When  a  married  woman  is  by  statute  authorized  to  carry  on  a 
trade  or  business,  she  may  purchase  goods  on  credit,35  execute 
notes,36  appoint  agents,87  form  partnerships  88  and  corporations,89 
and  generally  perform  such  acts  as  are  necessarily  incident  to  the 
business. 

CONVEYANCES,  SALES,  AND  GIFTS  BY  WIFE 

64.  AT   COMMON   LAW — At  common  law,  a  married  woman 

could  not,  by  a  conveyance,  either  transfer  her  own  real 
property,  or  bar  her  right  of  dower  in  the  real  property  of 
her  husband. 

65.  IN  EQUITY — In  equity,  in  most  jurisdictions,  it  is  held  that  a 

married  woman  has  the  power  to  convey  or  otherwise  dis- 
pose of  her  equitable  separate  estate,  real  or  personal,  un- 
less prohibited  by  the  instrument  creating  it.  In  all  juris- 
dictions she  has  the  power  if  conferred  by  the  instrument 
creating  it. 

66.  BY  STATUTE — Under  modern  statutes  married  women  gen- 

erally have  the  power  to  dispose  of  their  separate  property, 
real  or  personal. 

as  Snow  v.  Sheldon,  126  Mass.  332,  30  Am.  Rep.  684 ;  Lockwood  v.  Corey, 
150  Mass.  82,  22  N.  E.  440;  Cruzen  v.  McKaig,  57  Md.  454;  Azbill  v.  Azbill, 
92  Ky.  154,  17  S.  W.  284;  Horton  v.  Hill,  138  Ala.  625,  36  South.  465;  Wil- 
liams v.  Walker,  111  N.  C.  604,  16  S.  B.  706:  McDonald  v.  Rozen,  8  Idaho, 
352,  69  Pac.  125 ;  In  re  Coles,  230  Pa.  162,  79  Atl.  254 ;  Council  v.  Pridgen, 
153  N.  O.  443,  69  S.  E.  404;  Taylor  v.  Minigus,  66  111.  App.  70.  See,  also,  the 
statutes  of  the  various  states. 

8*Kuster  v.  Dickson  (C.  C.)  45  Fed.  91;  Hitchcock  v.  Richold,  5  Mackey 
(D.  C.)  414;  Glover  v.  Alcott,  11  Mich.  470;  Taylor  v.  Wands,  55  N.  J.  Eq. 
491,  37  Atl.  315,  62  Am.  St  Rep.  818. 

35  Tallman  v.  Jones,  13  Kan.  438. 

se  Barton  v.  Beer,  35  Barb.  (N.  Y.)  78.  See,  also,  Bovard  v.  Kettering,  101 
Pa.  181;  Frecking  v.  Holland,  53  N.  Y.  422. 

ST  Taylor  v.  Wands,  55  N.  J.  Eq.  491,  37  Atl.  315,  62  Am.  St.  Rep.  818. 

ss  Norwood  v.  Francis,  25  App.  D.  C.  463 ;  Butler  v.  Frank,  7  Ga.  App.  655, 
67  S.  E.  884 ;  Elliott  v.  Hawley,  34  Wash.  585,  76  Pac.  93,  101  Am.  St.  Rep. 
1016.  See,  also,  Code  Pub.  Gen.  Laws  Md.  1904,  art  45,  §  20. 

3»  Good  Land  Co.  v.  Cole,  131  Wis.  467,  110  N.  W.  895,  120  Am.  St.  Rep. 
1056,  11  Ann.  Cas.  SOG. 


§  67)  CONVEYANCES,  SALES,  AND  GIFTS  BY  WIPE  165 

67.  Statutes  have  very  generally  given  them  the  power  to  convey 
their  own  real  estate,  and  to  bar  their  right  to  dower  in 
the  real  estate  of  their  husbands  by  joining  with  them  in 
conveyances.  Certain  formalities  in  the  execution  of  the 
conveyance  are  required,  and  these  must  be  strictly  ob- 
served. 

Neither  a  conveyance  of  land,  nor  a  sale  and  transfer  of  personal 
property,  without  covenants  or  warranties,  nor  a  gift,  is  a  contract, 
for,  while  there  is  an  agreement,  the  agreement  transfers  rights  in 
rem  only,  without  contemplating,  or  even  for  a  moment  creating,  a 
right  in  personam.40  Conveyances  and  transfers  must,  therefore, 
be  dealt  with  separately  from  contracts,  and  not  as  contracts. 

At  Common  Law 

At  common  law  a  married  woman  could  not,  either  by  her  own 
conveyance  or  by  uniting  with  her  husband  in  a  conveyance,  bar 
herself  or  her  heirs  of  any  estate  of  which  she  was  seised  in  her  own 
right,  or  of  her  right  of  dower  in  the  real  estate  of  her  husband.41 
A  conveyance  of  her  land  by  a  married  woman  was  absolutely  void 
as  to  her.42  A  conveyance  by  her  jointly  with  her  husband,  wheth- 
er of  her  own  or  of  her  husband's  land,  was  considered  as  the  act 
of  the  husband  only,  and  the  law  restrained  its  operation  to  *he 
husband's  interest,  just  as  if  he  alone  had  executed  it.43  "This  dis- 
ability is  supposed  to  be  founded  on  the  principle  that  the  separate 
legal  existence  of  the  wife  is  suspended  during  the  marriage,  and  is 
strengthened  by  the  consideration  that,  from  the  nature  of  the 
connection,  there  is  danger  that  the  influence  of  the  husband  may 
be  improperly  exerted  for  the  purpose  of  forcing  the  wife  to  part 
with  her  rights  in  his  favor."44  The, only  mode  in  which  a  feme 
covert  could  convey  her  real  estate  at  common  law  was  by  uniting 
with  her  husband  in  levying  a  fine,  which  was  a  solemn  proceeding 
of  record,  in  the  face  of  the  court,  in  which  the  judges  were  sup- 

40  Anson,  Cont.  p.  3;    Clark,  Cont.  p.  12. 

41  Martin  v.  Dwelly,  6  Wend.  (N.  Y.)  9,  21  Am.  Dec.  245;   H'ollingsworth  v. 
McDonald,  2  Har.  &  J.  (Md.)  230,  3  Am.  Dec.  545. 

42Hoyt  v.  Swar,  53  111.  134;  Fowler  v.  Shearer,  7  Mass.  14;  Concord 
Bank  v.  Bellis,  10  Gush.  (Mass.)  276;  Wing  v.  Deans,  214  Mass.  546,  102  N. 
E.  313 ;  Albany  Fire  Ins.  Co.  v.  Bay,  4  N.  Y.  9. 

43  Albany  Fire  Ins.  Co.  v.  Bay,  4  N.  Y.  9 ;    Martin  v.  Dwelly,  6  Wend.  (N. 
Y.)  9,  21  Am.  Dec.  245. 

44  Per  Sutherland,  J.,  in  Martin  v.  Dwelly,  6  Wend.  (N.  Y.)  9,  21  Am.  Dec. 
245. 


166       CONTRACTS,  CONVEYANCES,  AND  QUASI  CONTRACTS     (Ch.  4 

posed  to  watch  over  and  protect  the  rights  of  the  wife,  and  to  as- 
certain by  a  private  examination  that  her  joining  in  the  act  was 
voluntary.45  Such  was  the  doctrine  of  the  common  law. 

At  a  very  early  date,  and  long  before  any  statute  on  the  subject, 
the  custom  arose  in  some  states  for  married  women  to  convey  their 
real  estate  by  deed  in  which  the  husband  joined,46  and  the  subse- 
quent statutes  as  a  rule  really  enacted  what  had  long  been  recog- 
nized as  the  customary  law.47 

Since  a  wife's  personal  property  in  possession  vested  in  her  hus- 
band at  common  law,  no  question  as  to  her  power  to  transfer  it 
could  well  arise.48  So,  too,  she  could  not  assign  her  choses  in  ac- 
tion so  as  to  defeat  his  right  to  reduce  them  to  his  possession.49 

In  Equity 

A  court  of  equity  has  no  more  power  than  a  court  of  law  to  rec- 
ognize a  conveyance  by  a'  married  woman  as  binding  upon  her, 
unless  it  conveys  her  equitable  separate  estate.  In  the  latter  case 
the  conveyance  may  be  upheld.  The  doctrine  of  the  wife's  equitable 
separate  estate  will  be  fully  considered  in  a  separate  chapter.  It 
is  sufficient  to  say  here  that  in  most  jurisdictions  it  is  held  that  a 
married  woman  has,  as  an  incident  to  her  separate  estate,  the  power 
to  dispose  of  it  by  conveyance  or  otherwise,  even  though  this  power 
is  not  expressly  conferred  by  the  instrument  creating  the  estate, 
provided  it  is  not  expressly  excluded  by  the  instrument.  In  some 
jurisdictions  it  is  held  that  the  power  must  be  conferred  in  the 
creation  of  the  estate.  In  none  does  the  power  exist  if  excluded  in 
the  creation  of  the  estate.50 

Under  Modern  Statutes 

In  all  of  the  states  the  common-law  rules  prohibiting  conveyanc- 
es by  a  married  woman,  and  those  giving  her  personal  property 
to  her  husband,  have  been  greatly  modified  by  statute.  In  some 
states  she  now  has  almost  as  much  power  as  a  feme  sole  in  respect 
to  her  real  and  personal  property.  In  all  states  she  has  more  or 
less  power  to  dispose  of  it.  The  extent  of  this  power  will  be  shown 
in  a  subsequent  chapter.51 

452  Inst.  515;  1  Vent  121a;  Martin  v.  Dwelly,  6  Wend.  (N.  T.)  9,  21  Am. 
Dec.  245. 

4«  Shaw  v.  Russ,  14  Me.  432 ;  Fowler  v.  Shearer,  7  Mass.  14 ;  Gordon  v. 
Haywood,  2  N.  H.  402 ;  Durant  v.  Ritchie,  4  Mason,  45,  Fed.  Gas.  No.  4,190. 

47  Bressler  v.  Kent,  61  111.  426,  14  Am.  Rep.  67;    Althen  v.  Tarbox,  48 
Minn.  18,  50  N.  W.  1018,  31  Am.  St  Rep.  616. 

48  Ante,  p.  lus.         40  Ante,  p.  131.         "Post,  p.  j§7         51  Tost,  p.  202. 


§  67)  CONVEYANCES,  SALES,  AND  GIFTS   BY   WIFE  167 

Mode  of  Conveyance  Where  the  Power  Exists 

Assuming  that  she  has  the  power  to  make  a  conveyance,  the 
question  next  arises  as  to  the  mode  in  which  she  must  exercise  it. 
In  all  of  the  states  statutes  have  been  enacted  changing  the  com- 
mon law  in  so  far  as  it  prevented  a  married  woman  from  making  a 
valid  conveyance,  and  allowing  her  to  convey  her  own  real  estate, 
or  to  bar  her  right  of  dower  in  her  husband's  real  estate  by  unit- 
ing with  him  in  a  conveyance  thereof.52  These  statutes,  while  they 
vary  to  some  extent  in  the  different  states,  very  generally  require 
the  wife  to  acknowledge  the  conveyance  with  certain  formalities, 
separate  and  apart  from  her  husband.  In  this,  as  in  all  other  re- 
spects, the  directions  of  the  statute  must  be  strictly  complied  with, 
or  the  conveyance  will  be  ineffectual  as  against  the  wife.  A  deed 
not  acknowledged  by  the  wife  according  to  the  directions  of  the 
statute  is,  as  to  her,  absolutely  void,  and  will  not  even  be  forced 
against  her  in  equity  as  an  agreement  to  convey.53 

s  2  Under  Code  1906,  c.  73,  §  6,  a  duly  acknowledged  deed  in  which  both 
husband  and  wife  join  conveys  all  right  and  title  which  she  then  has.  Weth- 
ered  v.  Conrad,  73  W.  Va.  551,  80  S.  E.  953.  Under  Code  Tenn.  1858,  §  2076, 
authorizing  a  married  woman  to  convey  real  estate  by  deed  in  which  her 
husband  joins,  a  deed  by  a  married  woman  conveying  to  her  husband  lands 
which  she  holds  in  trust  for  him,  is  not  void  because  he  does  not  join  there- 
in. Insurance  Co.  of  Tennessee  v.  Waller,  116  Tenn.  1,  95  S.  W.  811,  115 
Am.  St.  Rep.  763,  7  Ann.  Cas.  1078.  See,  also,  Jordan  v.  Jackson,  76  Neb. 
15,  106  N.  W.  999,  rehearing  denied  107  N.  W.  1047;  Hensley  v.  Blankin- 
ship,  174  N.  C.  759,  94  S.  E.  519 ;  Farmers'  Bank  of  Hardinsburg  v.  Richard- 
son, 171  Ky.  340,  188  S.  W.  406.  Under  Married  Woman's  Act,  §  8304,  wife, 
as  to  control  and  conveyance  of  her  separate  property,  is  sui  juris,  and  as 
such  is  clothed  with  the  right  to  sell  her  land  and  make  a  deed  thereto  inde- 
pendent of  husband.  Riggs  v.  Price  (Mo.)  210  S.  W.  420.  Under  Code  W* 
Va.  1913,  c.  66,  §  3  (sec.  3671)  and  chapter  73,  §  6  (sec.  3809),  married  woman 
in  good  faith  living  apart  from  her  husband  may,  in  the  form  prescribed  by 
statute,  make  a  valid  disposition  of  her  separate  real  and  personal  estate, 
without  joining  her  husband  whatever  the  cause  of  the  separation.  Spangler 
v.  Vermillion,  80  W.  Va.  75,  92  S.  E.  449. 

63  Martin  v.  Dwelly,  6  Wend.  (N.  Y.)  9,  21  Am.  Dec.  245;  Butler  v.  Buck- 
ingham, 5  Day  (Conn.)  492,  5  Am.  Dec.  17,4;  Grove  v.  Todd,  41  Md.  663,  2Q 
Am.  Rep.  76;  Hollingsworth  v.  McDonald,  2  Har.  &  J.  (Md.)  230,  3  Am.  Dec. 
545 ;  Townsley  v.  Chapin,  12  Allen  (Mass.)  476 ;  Bressler  v.  Kent,  61  111.  426, 
14  Am.  Rep.  67 ;  Rust  v.  Goff ,  94  Mo.  511,  7  S.  W.  418 ;  Laidley  v.  Central 
Land  Co.,  30  W.  Va.  505,  4  S.  E.  705 ;  Kimmey  v.  Abney  (Tex.  Civ.  App.)  107 
S.  W.  885;  Simpson  v.  Belcher,  61  W.  Va.  157,  56  S.  E.  211;  Shumate  v< 
Shumate,  78  W.  Va.  576,  90  S.  E.  824 ;  Deese  v.  Deese,  176  N.  C.  527,  97  S.  E. 
475;  Kilpatrick  v.  Kilpatrick,  176  N.  C.  182,  96  S.  E.  988;  Tillery  v.  Land, 
136  N.  C.  537,  48  S.  E.  824.  As  to  the  effect  of  immaterial  departures  from 
statutory  formalities,  see  Homer  v.  Schonfeld,  84  Ala.  313,  4  South.  105; 
Hollingsworth  v.  McDonald,  2  Har.  &  J.  (Md.)  230,  3  Am.  Dec,  545.  A  con- 


168       CONTRACTS,  CONVEYANCES,  AND  QUASI  CONTRACTS     (Ch.  4 

CONTRACTS  OF  HUSBAND 

68.  A  man's  power  to  contract  is  not  affected  by  his  marriage,  ex- 
cept that  he  cannot  by  his  contract  deprive  the  wife  of 
rights  which  she  acquires  in  his  property  by  virtue  of  the 
marriage. 

It  is  the  legal  existence  of  the  woman  only  that  is  affected  by 
marriage.  The  man's  legal  capacity  remains  virtually  unimpaired. 
He  has  substantially  the  same  power  to  enter  into  contracts  as 
before  marriage.  The  only  restrictions  on  his  power  to  contract 
which  are  imposed  by  marriage  result,  not  from  any  incapacity  in 
himself,  but  from  the  fact  that  by  law  the  marriage  confers  upon 
the  wife,  as  has  been  seen,  certain  rights  in  her  husband's  property. 
He  cannot  defeat  these  rights  by  any  contract  entered  into  by 
himself  alone.  Thus  he  cannot,  by  a  sale  of  his  land,  defeat  her 
right  to  dower  therein  if  she  survives  him. 


CONTRACTS  BY  WIFE  AS  HUSBAND'S  AGENT 

69.  IN  GENERAL — The  wife  may,  when  expressly  or  impliedly 

authorized  by  the  husband,  act  as  his  agent  in  the  making 
of  contracts  for  him ;  and  she  may  become  his  agent  by  es- 
toppel or  by  ratification,  as  in  other  cases  of  agency. 

(a)  If  they  are  living  together,  the  fact  of  cohabitation  raises  a 

presumption  of  authority  in  fact;  but  this  presumption 
may  be  rebutted. 

(b)  If  they  are  living  apart,  the  presumption  is  against  her  au- 

thority to  bind  him,  and  the  burden  is  on  the.  person  deal- 
ing with  her  to  show  such  authority. 

70.  AGENCY  OF  NECESSITY— As  a  rule,  where  a  husband  fails 

to  provide  for  his  wife,  she  becomes  his  agent  of  necessity 
to  purchase  necessaries  on  his  credit.  But  the  rule  is  sub- 
ject to  qualification: 


veyance  by  a  married  woman  living  apart  from  her  husband  for  a  valuable 
consideration,  though  void  as  a  conveyance  when  the  acknowledgment  does 
not  follow  Code  1913,  c.  73,  §  6  (see.  3809).  is  valid  as  a  contract  of  sale,  en- 
forceable against  her  and  her  heirs.  Shumate  v.  Shumate,  78  W.  Va.  576, 
90  S.  E.  824. 


§§  69-70)          CONTRACTS   BY  WIPE   AS  HUSBAND'S  AGENT  169 

(a)  He  is  liable,  under  such  circumstances, 

(1)  Where  he  lives  with  his  wife. 

(2)  Where  they  live  apart,  either  through  his  fault  or  by 

agreement,  and  without  fault  on  her  part. 

(b)  He  is  not  liable 

(1)  Where  she  leaves  him  without  cause,  unless  she  offers 

to  return,  and  he  refuses  to  receive  her. 

(2)  Where  the  credit  is  given  to  her,  and  not  to  him. 

(3)  Where  she  has  a  sufficient  separate  income. 

(4)  Where  she  has  agreed  to  accept  a  certain  amount  from 

him,  and  he  pays  it. 

The  rule  of  the  common  law  as  to  the  power  of  the  wife  to  con- 
tract is  so  far  modified  as  to  enable  a  wife  to  enter  into  a  contract 
as  the  agent  of  her  husband  when  he  has  given  her  express  author- 
ity to  bind  him,  or  has  impliedly  held  her  out  as  having  such  au- 
thority.54 Her  agency  is,  like  that  of  any  other  agent,  a  question 
of  fact,  and  may  be  inferred  from  the  ostensible  authority  with 
which  the  husband  has  clothed  her.55  Not  only  is  the  wife  general 
agent  for  the  husband  with  reference  to  those  household  matters 
that  are  usually  under  the  wife's  control,56  but  if  the  husband  ab- 
sents himself  from  home,  keeping  his  whereabouts  unknown  and 
leaving  his  property  in  the  care  of  his  wife,  she  is  his  agent  to  do 
those  things  customarily  delegated  to  wives  having  charge  of 
property.57  The  most  important  class  of  cases  in  which  the  wife 

54  Add.  Cont  135;   Proctor  v.  Woodruff  (Sup.)  119  N.  T.  Supp.  232;   Jfrmes 
McCreery  &  Co.  v.  Martin,  84  N.  J.  Law,  626,  87  Atl.  433,  47  L.  R.  A.  (N.  S.) 
279.    Where  a  husband  authorized  his  wife  to  hire  necessary  board  and  lodg- 
ing for  herself  and  family,  the  husband  is  bound  as  if  he  personally  made 
the  contract.     Stevens  v.  Hush  (Sup.)  172  N.  Y.  Supp.  258.     Where  a  husband 
authorized  his  wife  as  his  agent  to  purchase  household  furniture  on  credit, 
and  in  doing  so  it  was  necessary  that  she  contract  with  mortgagee  to  in- 
sure the  property,  the  making  of  such  agreement  was  within  the  scope  of 
her  authority.    Mosley  v.  Strattou  (Tex.  Civ.  App.)  203  S.  W.  397. 

55  MeGeorge  v.  Egan,  7  Scott,  112;   Mackinley  v.  McGregor,  3  Whart.  (Pa.) 
369,  31  Am.  Dec.  522 ;   BBRGH  v.  WARNER,  47  Minn.  250,  50  N.  W.  77,  28  Am. 
St.  Rep.  362,  Cooley  Cas.  Persons  and  Domestic  Relations,  85;    Cox  v.  Hoff- 
man, 20  N.  C.  319 ;    Gray  v.  Otis,  11  Vt.  628. 

5  e  Freestone  v.  Butcher,  9  Car.  &  P.  643;  Ruddock  v.  Marsh,  1  Hurl.  & 
N.  601. 

57  Evans  v.  Crawford  County  Farmers'  Mut.  Fire  Ins.  Co.,  130  Wis.  189, 
109  N.  W.  952,  9  L.  R.  A.  (N.  S.)  485,  118  Am.  St.  Rep.  1009.  In  this  case  it 
was,  however,  held  further  that  the  authority  of  a  wife  as  agent  for  her 
husband  by  implication  of  law  does  not,  under  any  circumstances,  extend  to 
selling  and  conveying  his  realty. 


170       CONTRACTS,  CONVEYANCES,  AND  QUASI  CONTRACTS     (Ch.  4 

may  render  her  husband  liable  on  the  theory  of  agency  is  cases  in 
which  she  purchases  necessaries,  and  pledges  his  credit  therefor. 
In  these  cases  the  power  of  the  wife  and  the  liability  of  the  hus- 
band will  vary  according  to  the  circumstances.  Where  he  supports 
her,  she  has  no  power  to  pledge  his  credit,  even  for  necessaries, 
unless  there  is  authority  in  fact.  If  he  fails  to  support  her,  she 
has  the  absolute  right  to  pledge  his  credit  for  necessaries,  whether 
she  has  authority  in  fact  or  not.58  The  law,  as  applied  to  cases  in 
which  the  wife  is  supported  by  the  husband,  will  first  be  explained, 
and  then  cases  in  which  he  neglects  to  provide  for  her  will  be  con- 
sidered. Finally  we  shall  ascertain  what  things  are  to  be  regarded 
as  necessaries. 

Agency  by  Estoppel 

Marriage  and  cohabitation  do  not,  as  a  matter  of  law,  regardless 
of  the  facts,  imply  authority  in  the  wife  to  pledge  her  husband's 
credit.69  The  husband  may,  however,  so  act  a's  to  estop  himself 
from  denying  his  wife's  agency.  If  she  is  generally  allowed  to  deal 
with  a  tradesman,  the  husband  will  be  considered  to  have  held  her 
out  as  his  agent,  and  will  be  liable  for  her  purchases.  This  doctrine 
is  not  limited  to  purchases  of  necessaries  by  the  wife.  The  extent 
of  the  estoppel  will  depend  upon  the  extent  of  the  dealings  which 
the  husband  has  thus  authorized.60  "If  a'  tradesman  has  had  deal- 
ings with  the  wife  upon  the  credit  of  the  husband,  and  the  hus- 
band has  paid  him  without  demurrer  in  respect  to  such  dealings,  the 
tradesman  has  the  right  to  assume,  in  the  absence  of  notice  to  the 
contrary,  that  the  authority  of  the  wife  which  the  husband  has 
recognized  continues.  '  The  husband's  quiescence  is  in  such  cases 
tantamount  to  acquiescence,  and  forbids  his  denying  an  authority 
which  his  own  conduct  has  invited  the  tradesman  to  assume."  61 

58  Duty  to  support  wife  and  family,  see  ante,  p.  80. 

6»McXemar  v.  Cohn,  115  111.  4pp.  31. 

eo  Debeuham  v.  Mellon,  6  App.  Cas.  24,  5  Q.  B.  Div.  403 ;  Fenner  v.  Lewis, 
10  Johns.  (N.  Y.)  38;  Benjamin  v.  Benjamin,  15  Conn.  347,  39  Am.  Dec.  384; 
Gates  v.  Brower,  9  N.  Y.  205,  59  Am.  Dec.  530;  Keller  v.  Phillips,  39  N.  Y. 
351 ;  Snell  v.  Stone,  23  Or.  327,  31  Pac.  663.  A  husband  is  liable  for  house- 
hold expenses  incurred  by  the  wife  where  he  had  clothed  her  with  apparent 
authority  by  paying  bills  previously  incurred.  Meier  &  Frank  Co.  v.  Mit- 
lehner,  75  Or.  331,  146  Pac.  796. 

«i  Debenham  v.  Mellon,  6  App.  Cas.  24,  5  Q.  B.  Div.  403;  Bon  wit,  Teller 
&  Co.  v.  Lovett  (Sup.)  102  N.  Y.  Supp.  800.  If  a  husband,  whose  wife  had 
pledged  his  credit  to  dressmakers,  desired  to  repudiate  her  act  as  unauthor- 
ized, he  was  bound  to  act  with  reasonable  promptness  when  he  became  aware 
of  what  had  been  done  and  that  the  dressmakers  in  good  faith  were  acting 


§§  69-70)         CONTRACTS   BY   WIFE   AS  HUSBAND'S  AGENT  171 

Agency  by  Ratification 

The  husband  may,  under  the  doctrine  of  agency  by  ratification, 
become  liable  on  contracts  made  by  his  wife  as  his  agent,  by  ratify- 
ing them.  If,  for  instance,  he  ratifies  a  purchase  made  by  his  wife 
on  his  credit,  he  is  just  as  liable  as  if  he  had  previously  authorized 
her  to  pledge  his  credit.62  And  this  necessarily  applies  not  only 
'where  the  contract  was  for  the  purchase  of  necessaries  for  the 
household,  but  extends  to  other  contracts  as  well.63  Knowledge 
that  his  wife  has  purchased  goods,  and  failure  to  disapprove  of 
the  purchase,  is  a  ratification.64  He  cannot  repudiate  a  purchase 
by  the  wife,  and  at  the  same  time  retain  the  property  purchased; 
but  must  return  it  if  it  is  in  existence.65 

Where  the  Wife  is  Supported  by  the  Husband — Agency  in  Fact 

The  husband's  liability  for  goods  furnished  his  wife,  where  he 
supports  her,  rests  entirely  upon  the  theory  of  agency  in  fact. 
If  he  supports  her,  she  has  no  power  to  pledge  his  credit,  even  for 
necessaries,  unless  there  is  authority  in  fact.68  The  principal  ques- 

on  his  wife's  representations.  Auringer  v.  Cochrane,  225  Mass.  273,  114 
N.  E.  355.  The  wife  will  be  regarded  as  having  authority  to  pledge  her  hus- 
band's credit  for  provisions  where,  for  12  years,  he  paid  the  accounts,  not- 
withstanding he  also  advanced  her  large  sums  for  household  expenses.  Mett- 
ler  v.  Snow,  90  Conn.  690,  98  Atl.  322,  Ann.  Gas.  1917C,  578. 

ezLandgraf  v.  Tanner,  152  Ala.  511,  44  South.  397.  And  see  Shuman  v. 
Steinel,  129  Wis.  422,  109  N.  W.  74,  7  L.  R.  A.  (N.  S.)  1048,  116  Am.  St.  Rep. 
961,  9  Ann.  Cas.  1064,  holding  that  where  a  wife,  assuming  to  act  as  her 
husband's  agent,  ordered  certain  books  from  plaintiff,  and  received  them,  and 
the  husband  subsequently,  with  knowledge  of  the  facts,  adopted  her  act  by 
promising  to  pay  for  the  property  or  by  accepting  the  benefit  of  the  transac- 
tion, he  became  individually  liable  for  payment  of  the  debt.  But  where  a 
wife  makes  a  contract  in  her  own  name  for  improvements  on  her  husband's 
home,  not  as  his  agent,  he  is  not  bound  as  principal  by  ratification,  because 
he  paid  for  part  of  the  work.  Thompson  v.  Brown,  121  Ga.  814,  49  S.  B. 
740. 

es  Conrad  v.  Abbott,  132  Mass.  330;  Day  v.  Burnham,  36  Vt.  37;  Harden- 
brook  v.  Harrison,  11  Colo.  9,  17  Pac.  72. 

e*  Seaton  v.  Benedict,  5  Bing.  28;  Lane  v.  Ironmonger,  13  Mess.  &  W.  368; 
,  Cothran  v.  Lee,  24  Ala.  380;  Woodward  v.  Barnes,  43  Vt.  330;  Ogden  v. 
Prentice,  33  Barb.  (N.  Y.)  160.  Where  a  wife  contracts,  assuming  to  act  for 
her  husband,  and  the  benefit  comes  to  his  hands,  and  he  does  not  disavow 
within  a  reasonable  time,  he  is  bound  thereby ;  but  the  rule  does  not  apply  to 
acts  of  the  wife  where  the  benefit  comes  to  her.  Evans  v.  Crawford  County 
Farmers'  Mut.  Fire  Ins.  Co.,  130  Wis.  189,  109  N.  W.  952,  9  L.  R.  A.  (N.  S.) 
485,  118  Am.  St.  Rep.  1009. 

es  Oilman  v.  Andrus,  28  Vt.  241,  67  Am.  Dec.  713. 

ee  jolly  v.  Rees,  15  C.  B.  (N.  S.)  628;  Johnston  v.  Sumner,  3  Hurl.  &  N. 
261 ;  STEINFIELD  v.  GIRRARD,  103  Me.  151,  68  Atl.  630,  Cooley  Cas.  Per- 


172       CONTRACTS,  CONVEYANCES,  AND  QUASI  CONTRACTS     (Cll.  4 

tion  in  these  cases  is  as  to  the  presumption  of  authority.  In  other 
respects,  the  law  is  the  same  as  in  the  case  of  any  other  contract 
entered  into  by  the  wife  as  agent  of  her  husband. 

Same — Where  They  are  Living  Together 

Where  the  husband  and  wife  are  living  together,  a  presumption 
arises,  from  the  fact  of  cohabitation,  that  the  husband  has  in  fact 
given  the  wife  authority  to  purchase  goods  on  his  credit.67  The 
wife  is  general  agent  of  the  husband  with  reference  to  those  mat- 
ters which  are  usually  under  control  of  the  wife,  such  as  the  pur- 
chase of  clothes  for  herself,  groceries  and  provisions  for  the  family, 
and  the  engaging  of  household  servants.68  In  other  words,  where 
a  tradesman  brings  an  action  against  the  husband  for  articles  fur- 
nished the  wife  on  the  husband's  credit,  he  makes  out  a  prima  facie 
case  by  showing  that  the  wife  was  living  with  her  husband,  and  that 
the  articles  were  in  kind,  quality,  and  quantity  suitable  to  the  hus- 

sons  and  Domestic  Relations,  89;  Weingreen  v.  Beckton  (Sup.)  102  N.  T. 
Supp.  520;  Wilson  v.  Thomass  (Sup.)  127  N.  Y.  Supp.  474;  Keller  v.  Phillips, 
39  N.  Y.  351 ;  James  McCreery  &  Co.  v.  Martin,  84  N.  J.  Law,  626,  87  Atl.  433, 
47  L.  B.  A.  (N.  S.)  279;  Benjamin  v.  Benjamin,  15  Conn.  347,  39  Am.  Dec.  384; 
Debenham  v.  Mellon,  6  App.  Gas.  24,  5  Q.  B.  Div.  403.  A  husband  is  liable 
for  goods  sold 'his  wife  upon  his  credit  and  by  his  authority  or  assent,  ex- 
press or  implied.  Noel  v.  O'Neill,  128  Md.  202,  97  Atl.  513. 

67  Nathan  v.  Morgentb.au  (Sup.)  114  N.  Y.  Supp.  796;  French  v.  Burlingame, 
155  Mo.  App.  548,  134  S.  W.  1100;  Valois  v.  Gardner,  122  App.  Div.  245,  106 
N.  Y.  Supp.  808;  Howell  v.  Blesh,  19  Okl.  260,  91  Pac.  893;  McCreery  v. 
Scully,  67  Pa.  Super.  Ct.  524.  See,  also,  Mettler  v.  Snow,  90  Conn.  690,  98 
Atl.  322,  Ann.  Cas.  1917C,  578.  Where  there  has  been  no  open  separa- 
tion the  presumption  arises  that  the  husband  and  wife  are  living  together. 
BALL  v.  LOVETT  (Sup.)  98  N.  Y.  Supp.  815,  Cooley  Cas.  Persons  and  Do- 
mestic Relations,  85;  Stoutenborough  v.  Ranimel,  123  111.  App.  487. 

The  husband  will  not  be  liable  if  the  goods  are  sold  on  the  credit  of 
the  wife  alone.  Mattar  v.  Wathen,  99  Ark.  329,  138  S.  W.  455 ;  H.  Leonard 
&  Sons  v.  Stowe,  166  Mich.  681,  132  N.  W.  454 ;  Richburg  v.  Sherwood  (Tex. 
Civ.  App.)  105  S.  W.  524;  Noel  v.  O'Neill,  128  Md.  202,  97  Atl.  513;  Wick- 
strom  v.  Peck,  179  App.  Div.  855,  167  N.  Y.  Supp.  408.  One  who  has  sold 
clothing  and  other  dry  goods  to  a  wife  and  charged  to  her  account  can- 
not collect  therefor  from  the  husband  without  proving  that  the  husband 
had  neglected  to  make  adequate  provision  for  the  support  of  the  wife,  in 
view  of  Civ.  Code,  §  174.  Coulter  Dry  Goods  Co.  v.  Munford,  38  Cal.  App. 
231,  175  Pac.  900. 

«s  Freestone  v.  Butcher,  9  Car.  &  P.  643;  Ruddock  v.  Marsh,  1  Hurl.  &  N. 
<601;  Wagner  v.  Nagel,  33  Minn.  348,  23  N.  W.  308;  May  v.  Josias  (Sup.)  159 
N.  Y.  Supp.  820.  Duty  to  support  wife  and  family,  see  ante,  p.  80.  The 
language  of  Code  Pub.  Gen.  Laws  1904,  art.  45,  §  5,  that  the  husband  is  not 
liable  "upon  any  contract  made  by  his  wife  in  her  own  name  and  upon  her 
own  responsibility"  does  not  apply  to  contracts  made  by  a  wife  as  agent, 
or  on  bis  credit  for  necessaries.  Noel  v.  O'Neill,  128  Md.  202,  97  Atl.  513. 


§§  69-70)         CONTRACTS   BY  WIFE   AS   HUSBAND'S   AGENT  173 

band's  fortune  and  station  in  life.69  This  presumption,  however,  as 
already  stated,  is  one  of  fact,  and  not  of  law.  Cohabitation  does 
not  necessarily,  but  only  prima  facie,  empower  the  wife  to  render 
her  husband  liable,  even  for  necessaries.  He  may  rebut  this  pre- 
sumption by  showing  that  she  was  forbidden  to  pledge  his  credit.70 
And,  since  his  liability,  where  he  suitably  maintains  her,  is  based  on 
the  theory  of  an  agency  in  fact,  the  tradesman's  ignorance  of  the 
fact  that  the  wife  had  been  forbidden  to  pledge  his  credit  is  alto- 
gether immaterial,  provided,  of  course,  as  heretofore  explained,  the 
husband  has  not  so  held  out  his  wife  as  authorized  to  pledge  his 
credit  as  to  be  estopped  to  deny  her  agency.71  It  is  contended,  it 
was  said  in  a  leading  English  case,  "that  there  is  a  presumption  that 
a  wife  living  with  her  husband  is  authorized  to  pledge  her  hus- 
band's credit  for  necessaries ;  that  the  goods  supplied  by  the  plain- 
tiffs were,  as  it  is  admitted  they  were,  necessaries;  and  that,  as 
.a  consequence,  an  implied  authority  is  established.  This  contention 
is  founded  upon  an  erroneous  view  of  what  is  meant  by  the  term 

«9  Debeuham  v.  Mellon,  6  App.  Cas.  24,  5  Q.  B.  Div.  403 ;  Woodward  v. 
Barnes,  43  Vt.  330:  Keller  v.  Phillips,  39  N.  Y.  351:  Alley  v.  Winn,  134 
Mass.  77,  45  Am.  Rep.  297 ;  FEINER  v.  BOYNTON,  73  N.  J.  Law,  136,  62  Atl. 
420,  Cooley  Cas.  Persons  and  Domestic  Relations,  84;  Hays  v.  Cox  (Mo. 
App.)  185  S.  W.  1164;  BALL  v.  LOVETT  (Sup.)  98  N.  Y.  Supp.  815,  Cooley 
Cas.  Persons  and  Domestic  Relations,  85 ;  B.  Altman  &  Co.  v.  Durland,  185 
App.  Div.  114,  173  N.  Y.  Supp.  62 ;  Edminston  v.  Smith,  13  Idaho,  645,  92  Pac. 
842,  14  L.  R.  A.  (N.  S.)  871,  121  Am.  St.  Rep.  294;  Stout^nborough  v.  Rammel, 
123  111.  App.  487.  The  statute  authorizing  married  women  to  contract  does 
not  abrogate  the  common-law  liability  of  the  husband  for  necessary  com- 
forts and  supplies  furnished  the  wife,  suitable  to  their  condition  and  degree 
in  life.  Ponder  v.  D.  W.  Morris  &  Bro.,  152  Ala.  531,  44  South.  651.  To 
the  same  effect,  see  Ruhl  v.  Heintze,  97  App.  Div.  442,  89  N.  Y.  Supp.  1031. 

TO  Jolly  v.  Rees,  15  C.  B.  (N.  S.)  628;  Debenham  v.  Mellon,  6  App.  Cas. 
24,  5  Q.  B.  Div.  403 ;  Woodward  v.  Barnes,  43  Vt.  330 ;  Keller  v.  Phillips,  39 
N.  Y.  35-1 ;  Mattar  v.  Wathen,  99  Ark.  329,  138  S.  W.  455 ;  Meuschke  v.  Riley, 
159  Mo.  App.  331,  140  S.  W.  639;  Wickstrom  v.  Peck,  155  App.  Div.  523, 
140  N.  Y.  Supp.  570.  A  shopkeeper,  who  has  notice  that  husband  claimed 
to  be  providing  for  his  wife,  and  had  forbidden  credit,  sells  to  the  wife  on 
the  credit  of  the  husband  at  the  risk  of  being  able  to  show  that  the  hus- 
band failed  to  perform  his  duty,  arid  that  the  goods  furnished  were  actual- 
ly necessary  for  the  then  present  or  immediate  future  use  of  the  wife.  B. 
Altman  &  Co.  v.  Durland,  185  App.  Div.  114,  173  N.  Y.  Supp.  62. 

71  Ante,  p.  170.  As  was  pointed  out  in  Debenham  v.  Mellon,  6  App.  Cas. 
24,  5  Q.  B.  Div.  403,  the  statement  in  Johnson  v.  Sumner,  27  Law  J.  Exch. 
341,  that,  "if  a  man  and  his  wife  live  together,  it  matters  not  what  private 
arrangement  they  make,  the  wife  has  all  the  usual  authorities  of  wife,"  ap- 
plied only  to  the  case  where  an  appearance  of  authority  has  been  created 
toy  the  husband's  acts,  or  by  his  assent  to  the  acts  of  his  wife. 


174       CONTRACTS,  CONVEYANCES,  AND  QUASI  CONTRACT]      (Ch.  4 

'presumption'  in  cases  where  it  has  been  used  with  reference  to 
a  wife's  authority  to  pledge  her  husband's  credit  for  necessaries. 
There  is  a  presumption  that  she  has  such  authority  in  the  sense 
that  a  tradesman  supplying  her  with  necessaries  upon  her  hus- 
band's credit,  and  suing  him,  makes  out  a  prima  facie  case  against 
him  upon  proof  of  that  fact  and  of  the  cohabitation.  But  this  is 
a  mere  presumption  of  fact,  founded  upon  the  supposition  that 
wives  cohabiting  with  their  husbands  ordinarily  have  authority 
to  manage  in  their  own  way  certain  departments  of  the  household 
expenditure,  and  to  pledge  their  husbands'  credit  in  respect  of  mat- 
ters coming  within  those  departments.  Such  a.  presumption  or 
prima  facie  case  is  rebuttable,  and  is  rebutted  when  it  is  proved 
in  the  particular  case,  as  here,  that  the  wife  has  not  that  authority. 
If  this  were  not  so,  the  principles  of  agency,  upon  which,  ex  hypotK- 
esi,  the  liability  of  the  husband  is  founded,  would  be  practically 
of  no  effect."  72 

Same — Where  They  are  Living  Apart 

Where  a  wife  is  living  apart  from  her  husband,  there  is  no  pre- 
sumption that  she  has  any  authority  in  fact  to  pledge  his  credit 
even  for  necessaries.78  On  the  contrary,  the  presumption  is  that 
she  has  not.  The  person  who  sells  to  her  under  such  circumstances 
either  sells  to  her  as  a  feme  sole,  or,  if  he  knows  that  she  is  married, 
he  is  given  reason  to  suspect,  from  the  fact  of  her  living  apart  from 
her  husband,  that  her  relations  with  him  are  such  that  she  has 
not  been  authorized  to  pledge  his  credit.74  Under  these  circum- 
stances it  is  incumbent  upon  the  tradesman,  in  order  to  hold  the 
husband  liable,  to  rebut  the  presumption  by  showing  authority 
in  fact,  or  else  to  bring  the  case  within  the  rule  to  be  presently 
explained,  giving  a  wife  absolute  power  to  bind  her  husband  where 
he  neglects  to  provide  for  her.76 

72  per  Thesiger,  L.  J.,  in  Debenham  v.  Mellon,  6  App.  Cas.  24,  5  Q.  B. 
Dlv.  403. 

•3  Rea  v.  Durkee,  25  111.  503 ;  Cany  v.  Fatten.  2  Ashm.  (Pa.)  140 ;  Hass  v. 
Brady,  49  Misc.  Rep.  235,  96  N.  Y.  Supp.  449;  Maiden  Hospital  v.  Murdock, 
218  Mass.  73,  105  N.  E.  457. 

*«Quinlan  v.  Westervelt,  65  Misc.  Rep.  547,  120  N.  Y.  Supp.  879,  hold- 
ing that  one  who  sells  necessaries  to  a  married  woman,  whom  he  kncws 
is  living  apart  from  her  husband,  cannot  hold  the  husband  therefor,  on 
the  theory  that  she  was  authorized  to  make  the  purchases  on  his  credit, 
or  that  the  provision  made  for  her  by  him  was  inadequate. 

"  Johnson  v.  Suinner,  27  Law  J.  Exch.  341 :  Walker  v.  Simpson,  7  Watts 
&  S.  (Pa.)  83,  42  Am.  Dec.  21G;  Mitchell  v.  Treauor,  11  Ga.  324,  56  Am.  Dec. 


§§  69-70)         CONTRACTS   BY  WIFE   AS   HUSBAND'S   AGENT  175 

Where  the  Husband  Neglects  to  Support  the  Wife — Agency  of  Ne- 
cessity 

Where  a  husband  neglects  to  provide  for  or  support  his  wife, 
even  if  they  are  cohabiting,  the  wife  has  an  absolute  right  to  pledge 
his  credit  for  necessaries.76  She  has  this  right  even  though 
there  is  no  agency  in  fact,  for  th-e  agency  is  implied  in  law  with- 
out regard  to  the  fact.77  The  husband's  liability  is  based  on  the 
theory  of  agency,  but  the  agenqy  is  implied  as  a  matter  of  law  be- 
cause of  the  husband's  legal  duty  to  support  his  wife.  The  husband 
will  not  be  liable  for  necessaries  purchased  by  his  wife  if  he  shows 
that  credit  was  given  to  the  wife  herself,78  or  that  she  had  a  suffi- 
cient separate  income,79  or  that  he  made  her  a  sufficient  allow- 
ance.80 

421 ;  Rea  v.  Durkee,  25  111.  503 ;  Stevens  v.  Story,  43  Vt.  327 ;  Sturtevant  v. 
Starin,  19  Wis.  268;  Benjamin  v.  Dockham,  132  Mass.  181;  Inhabitants  of 
Sturbridge  v.  Franklin,  160  Mass.  149,  85  N.  E.  069;  Harttmann  v.  Tegart, 
12  Kan.  177 ;  Vusler  v.  Cox,  53  N.  J,  Law,  516,  22  Atl.  347.  Where  husband 
and  wife  are  living  separate  and  apart,  it  devolves  upon  a  physician  giv- 
ing credit  to  the  wife  for  medical  services  to  show  that  the  wife  was  not  at 
fault,  or  that  the  husband  authorized  or  assented  to  the  performance  of 
the  services.  Steele  v.  Leyhan,  210  111.  App.  201. 
7  e  Duty  to  support  wife  and  family,  see  ante,  p.  80. 

77  Eastland  v.  Burchell,  3  Q.  B.  Div.  436;    Seybold  v.  Morgan,  43  111.  App. 
39;   W.  &  J.  Sloane  v.  Boyer  (Sup.)  95  N.  Y.  Supp.  531;   Pierpont  v.  Wilson, 
49  Conn.  450;   Dexter  v.  Booth,  2  Allen  (Mass.)  559;    Raynes  v.  Bennett,  114 
Mass.  424 ;   Benjamin  v.  Dockham,  134  Mass.  418 ;   Watkins  v.  De  Armond,  89 
Ind.  553;    Eiler  v.  Crull,  99  Ind.  375;    Walker  v.  Laighton,  31  N.  H.  Ill; 
Ferren  v.  Moore,  59  N.  H.  106;    Keller  v.  Phillips,  39  N.  Y.  351;    Cromwell 
v.  Benjamin,  41  Bart).  (N.  Y.)  558;    Woodward  v.  Barnes,  43  Vt.  330;    Barr 
v.  Armstrong,  56  Mo.  577 ;  Eames  v.  Sweetser,  101  Mass.  78 ;  BERGH  v.  WAR- 
NER, 47  Minn.  250,  50  N.  W.  77,  28  Am.  St.  Rep.  362,  Cooley  Cas.  Persons 
and  Domestic  Relations,  85;    Dorrance  v.  Dorrance,  257  Mo.  317,  165  S.  W. 
783;    Devendorf  v.  Emerson,  66  Iowa,  698,  24  N.  W.  515).    The  implied  pow- 
er of  a  wife  to  bind  her  husband  for  necessaries,  where  it  exists,  is  for  her 
own  benefit,  and  not  for  the  benefit  of  those  with  whom  she  may  deal.    Zent 
v.   Sullivan,  47  Wash.  315,  91  Pac.  1088,  13  L.  R.  A.  (N.  S.)   244,  15  Ann. 
Cas.  19. 

78  Jewsbury  v.  Newbold,  26  Law   J.  Exch.  247;   Pearson  v.  Darrington,  32 
Ala.  227 ;    Stammers  v.  Macomb,  2  Wend.  (N.  Y.)  454 ;    Moses  v.  Fogartie,  2 
Hill  (S.  C.)  335 ;  Carter  v.  Howard,  39  Vt.  106 ;   Goodson  v.  Powell,  9  Ga.  App, 
497,  71  S.  E.  765;    Skinner  v.  Tirrell,  15)9  Mass.  474,  34  N.  E.  692,  21  L.  R. 
A.  673,  38  Am.  St.  Rep.  447. 

7 »  Freestone  v.  Butcher,  9  Car.  &  P.  643;  Swett  v.  Penrice,  24  Miss.  416; 
Weisker  v.  Lowenthal,  31  Md.  413. 

soAtkyns  v.  Pearce,  26  Law  J.  C.  P.  252;  Oatman  v.  Watrous,  120  App. 
Div.  66,  105  N.  Y.  Supp.  174 ;  Nathan  v.  Morgenthau  (Sup.)  114  N.  Y.  Supp. 
796;  B.  Altman  &  Co.  v.  Durlaud,  185  App.  Div.  114,  173  N.  Y.  Supp.  62; 
Harshaw  v.  Merryman,  18  Mo.  106.  A  husband  is  liable  for  necessaries  fur- 


'  176       CONTRACTS,  CONVEYANCES,  AND  QUASI  CONTRACTS     (Ch.  4 

The  rule  applies  all  the  more  forcibly,  if  possible,  where  the 
husband  unlawfully  separates  from  his  wife  without  making  suit- 
able provision  for  her,  or  if  he,  by  his  conduct,  causes  her  to  leave 
him.81  A  husband  is  bound  to  support  his  wife,  and  if  he  leaves 
her  without  the  means  of  subsistence  she  becomes  "an  agent  of  ne- 
cessity to  supply  her  wants  upon  his  credit."  82  This  right  arises 
where  the  husband  has  driven  the  wife  away,  or  where  she  has 
left  him  in  consequence  of  ill  treatment  and  reasonable  and  well- 
grounded  apprehension  of  further  violence,88  or  because  her  hus- 
band has  rendered  his  home  an  unfit  place  for  her  to  live,  as  by 
introducing-  women  of  profligate  habits,84  or  in  consequence  of  the 
commission  by  him  of  such  acts  as  would  entitle  her  to  a  divorce 
from  bed  and  board.85  If  the  wife  leaves  her  husband  without  jus- 
tifiable cause,  she  forfeits  the  right  to  obtain  her  necessaries  at 
his  expense.88  In  case  she  returns,  and  is  received  by  her  hus- 

nished  his  wife  on  his  credit,  unless  it  Appears  by  way  of  defense  that  the 
wife  was  amply  supplied  with  similar  articles,  or  that  she  had  been  fur- 
nished with  ready  money  to  pay  therefor.  Frank  v.  Carter,  219  N.  Y.  35,  113 
N.  E.  549,  L.  R.  A.  1917B,  1288,  modifying  judgment  164  App.  Div.  913,  149 
N.  Y.  Supp.  268. 

si2  Kent,  Comrn.  146;  Bolton  v.  Prentice,  2  Strange,  1214;  Mayhew  v. 
Thayer,  8  Gray  (Mass.)  172;  Sultan  v.  Misrahi,  47  Misc.  Rep.* 655,  94  N. 
Y.  Supp.  519;  State  v.  Newman,  91  Conn.  6,  98  Atl.  346,  3  A.  L.  R.  103; 
Wolf  v.  Schulman,  45  Misc.  Rep.  418,  90  N.  Y.  Supp.  363;  CLOTHIER  v.  SI- 
GLE,  73  N.  J.  Law,  419,  63  Atl.  865,  Cooley  Cas.  Persons  and  Domestic  Rela- 
tions, 88;  Eiler  v.  Cnill,  99  Ind.  375;  Snover  v.  Blair,  25  N.  J.  Law,  94; 
Walker  v.  Laighton,  31  N.  H.  111.  As  to  the  effect  of  an  offer  to  return,  see 
note  86,  infra. 

sa  Eastland  v.  Burchell,  3  Q.  B.  Div.  436.  And  see  Sultan  v  Misrahi,  47 
Misc.  Rep.  655,  94  N.  Y.  Supp.  519;  Charles  M.  Decker  &  Bros.  v.  Moyer 
(Sup.)  121  N.  Y.  Supp.  630 ;  In  re  Rudowsky's  Estate,  181  111  App.  318 ;  Har- 
rigan  v.  Cahill,  100  Misc.  Rep.  48,  164  N.  Y.  Supp.  1005. 

«3Houliston  v.  Smyth,  2  Car.  &  P.  22;  Baker  v.  Oughton,  130  Iowa,  35, 
106  N.  W.  272 ;  Beaudette  v.  Martin,  113  Me.  310,  93  Atl.  758 ;  In  re  New- 
man's Case,  222  Mass.  563,  111  N.  E.  359,  L.  R.  A.  1916C,  1145;  Reynolds  v. 
Sweetser,  19  Gray  (Mass.)  78. 

.84  Houliston  v.  Smyth,  2  Car.  &  P.  22;  Descelles  v.  Kadmus,  8  Iowa,  51; 
Kemp  v.  Downham,  5  Har.  (Del.)  417. 

8-'.  Hancock  v.  Merrick,  10  Cush.  (Mass.)  41;  Rea  v.  Durkee,  25  111.  503; 
Barker  v.  Dayton,  28  Wis.  367,  383 ;  Thorpe  v.  Shapleigh,  67  Me.  235. 

s«Manby  v.  Scott,  1  Mod.  124:  Etherington  v.  Parrott,  2  Ld.  Raym.  1006; 
Kcssler  v.  Kessler,  2  Cal.  App.  509,  83  Pac.  257 :  Morgenroth  v.  Spencer,  124 
Wis.  564,  102  N.  W.  1086 ;  Bevier  v.  Galloway,  71  HI.  517 ;  McCutchen  v.  Mc- 
Gahay,  11  Johns.  (N.  Y.)  281,  6  Am.  Dec.  373 ;  Harttmann  v.  Tegart,  12  Kan. 
177;  Collins  v.  Mitchell.  5  Har.  (Del.)  369;  Oinson  v.  Heritage,  45  Ind.  73, 
15  Am.  Rep.  258;  Denver  Dry  Goods  Co.  v.  Jester,  60  Colo.  290,  152  Pac.  903, 
L.  R.  A.  1917A,  937;  Johnson  v.  Coleman,  13  Ala.  App.  520,  69  South.  318; 


§§  69-70)         CONTRACTS   BY  WIPE   AS  HUSBAND'S  AGENT  177 

band,  the  right  revives,  but  only  as  to  future  necessaries.87  This 
is  true  where  she  offers  to  return,  and  he  refuses  to  receive  her.88 
It  follows  from  this  doctrine  that,  where  a  wife  elopes,  and  com- 
mits adultery,  she  loses  the  right  to  pledge  her  husband's  credit 
for  necessaries;89  and  this  has  been  held  to  be  true  even  where 
the  husband  committed  adultery  first,  and  turned  her  away.8<> 
Where,  however,  he  has  connived  at  her  adultery,  it  is  no  defense 
as  against  his  liability.91  One  living  in  adultery  with  a  wife  who 
has  left  her  husband,  even  for  justifiable  reasons,  cannot  make  the 
husband  liable  for  necessaries  furnished  by  him.92 

Sansrer  Bros.  v.  Trammell  (Tex.  Civ.  App.)  198  S.  W.  1179;  State  v.  Newman, 
91  Conn.  6,  98  Atl.  346,  3  A.  L.  R.  103 ;  Thome  v.  Kathan,  51  Vt.  520 ;  Belk- 
nap  v.  Stewart,  38  Neb.  304,  56  N.  W.  881,  41  Am.  St.  Rep.  729;  Walker  v. 
Laighton,  31  N.  H.  Ill ;  STETNFIELD  v.  GIRRARD,  103  Me.  151,  68  Atl.  630, 
Cooley  Gas.  Persons  and  Domestic  Relations,  89 ;  holding,  also,  that  the  trades- 
man's ignorance  of  the  separation  did  not  affect  the  rule.  In  Walker  v. 
Laighton,  31  N.  H.  Ill,  it  was  said:  "The  husband  who  has  causelessly 
deserted  his  wife  may  in  good  faith  seek  a  reconciliation,  and  if  the  wife, 
under  such  circumstances,  refuses  to  live  with  him  again,  without  good  cause, 
she  becomes  from  that  time  the  party  in  the  wrong,  and  has  no  longer  any 
authority  to  pledge  his  credit,  even  for  necessaries,  more  than  she  would 
have  had  if  she  had  herself  originally  left  him  without  cause1.  *  *  *  And 
it  makes  no  difference  that  he  desires  her  to  change  her  residence,  and  to 
go  to  live  with  him  at  some  other  place,  not  unsuitable  for  her  residence, 
since  he  has  the  right  to  choose  his  own  residence,  and  it  is  the  duty  of  the 
wife  and  children  to  conform  to  his  wishes  in  this  respect."  See.  also,  Rum- 
ney  v.  Keyes,  7  N.  H.  571 ;  Kimball  v.  Keyes,  11  Wend.  (N.  Y.)  33.  A  hus- 
band was  liable  for  necessary  medical  attention  rendered  to  his  wife  during 
childbirth,  and  to  his  minor  children,  though,  at  time  such  services  were 
rendered,  the  wife  in  the  nervous  state  incident  to  pregnancy  had  tempo- 
rarily left  the  husband  and  had  gone  to  her  mother ;  such  temporary  sepa- 
ration not  constituting  abandonment.  Bryant  v.  Lane  (Ala.  App.)  81  South. 
364. 

87Qinson  v.  Heritage,  45  Ind.  73,  15  Am.  Rep.  258;  Williams  v.  Prince, 
3  Strob.  (S.  C.)  490;  Reese  v.  Chilton,  26  Mo.  598.  There  is  authority  to  the 
effect  that  the  husband  will  also  be  liable  for  debts  contracted  during  sepa- 
ration. Robison  v.  Gosnold,  6  Mod.  171. 

fs  Manby  v.  Scott,  1  Mod.  124,  131 ;  McGahay  v.  Williams,  12  Johns.  (N.  Y.) 
293 ;  McCutchen  v.  McGahay,  11  Johns.  (N.  Y.)  281,  6  Am.  Dec.  373 ;  Cunning- 
ham v.  Irwin,  7  Serg.  &  R.  (Pa.)  247,  10  Am.  Dec.  458;  Henderson  v.  String- 
er, 2  Dana  (Ky.)  291 ;  Clement  v.  Mattison.  3  Rich.  (S.  C.)  93. 

89  Ham  v.  Toovey,  Selw.  N.  P.  271;  Morris  v.  Martin,  1  Strange,  647;  Em- 
mett  v.  Norton,  8  Car.  &  P.  506 ;  Hardie  v.  Grant,  Id.  512 ;  Cooper  v.  Lloyd, 
6  C.  B.  (N.  S.)  519. 

»o  Govier  v.  Hancock,  6  Term  R.  603.  But  see  Needham  v.  Bremner,  L. 
R.  1  C.  P.  583. 

9i  Norton  v.  Fazan,  1  Bos.  &  P.  226;  Wilson  v.  Glossop,  19  Q.  B.  Div.  379; 
Ferren  v.  Moore,  59  N.  H.  106. 

»2Almy  v.  Wilcox,  110  Mass.  443. 
TIFF.P.&  D.REL.(3o  ED.)— 12 


178       CONTRACTS,  CONVEYANCES,  AND  QUASI  CONTRACTS     (Ch.  4 

Where  husband  and  wife  live  apart  by  mutual  agreement,  the 
husband's  liability  for  necessaries  furnished  her  continues  in  the 
absence  of  any  provision  for  her  support.03  It  also  continues  where 
he  has  agreed  to  make  her  an  allowance,  if  he  does  not  pay  it.84 
When,  however,  he  furnishes  her  a  sufficient  allowance,  she  can- 
not bind  him ; 9B  and  the  fact  that  the  person  who  furnishes  her 
with  goods  has  no  knowledge  of  the  allowance  is  altogether  im- 
material, for  in  supplying  her  he  acts  at  his  peril.86  The  allowance 
must  be  sufficient  for  the  wife's  necessaries,  and  whether  it  is  so 
or  not  is  a  question  of  fact  for  the  jury,87  except  where  she  agrees 
to  accept  a  stipulated  allowance,  and  not  to  apply  to  her  husband 
for  more.  In  that  case  the  question  of  the  sufficiency  of  the  al- 
lowance is  not  for  the  jury,  since  it  is  excluded  by  the  express  terms 
of  the  settlement.88 

»«  Hodgkinson  v.  Fletcher,  4  Camp.  70 ;  Ross  v.  Ross,  69  111.  569 ;  Kiui- 
ball  v.  Keyes,  11  Wend.  (N.  Y.)  33;  Lockwood  v.  Thomas,  12  Johns.  (N.  Y.) 
248;  Walker  v.  Laighton,  31  N.  H.  Ill;  Dixon  v.  Hurrell,  8  Car.  &  P. 
717;  Predd  v.  Eves,  4  Har.  (Del.)  385;  McCarter  v.  McCarter,  10  Ga.  App. 
754,  74  S.  E.  308;  In  re  Newman's  Case,  222  Mass.  563,  111  N.  E.  359,  L. 
R.  A.  1916C,  1145;  Inhabitants  of  Alna  v.  Plummer,  4  Greenl.  (Me.)  258. 
But  see  McKee  v.  Cunningham,  2  Cal.  App.  684,  84  Pac.  260. 

»*  Beale  v.  Arabin,  36  Law  T.  (N.  S.)  249;  Nurse  v.  Craig,  2  Bos.  &  P. 
(N.  R.)  148.  Husband,  to  defeat  liability  for  necessaries  furnished  wife  for 
support  of  herself  and  children,  on  ground  of  agreement  with  wife,  where- 
by such  necessaries  were  to  be  purchased  with  amount  given  wife  weekly, 
is  required  to  show  that  wife  has  been  furnished  with  sufficient  money  to 
pay  cash  for  all  such  necessaries.  Best  &  Co.  v.  Cohen  (Sup.)  174  N.  Y. 
Supp.  639. 

»o  Todd  v.  Stoakes,  1  Salk.  116 ;  Dixon  v.  Hurrell,  8  Car.  &  P.  717 ;  Mizen 
v.  Pick,  3  Mees.  &  W.  481;  Kemp  v.  Downham,  5  Har.  (Del.)  417;  Baker 
v.  Barney,  8  Johns.  (N.  Y.)  72,  5  Am.  Dec.  326;  Kimball  v.  Keyes,  11  Wend. 
(N.  Y.)  33. 

»8  Mizen  v.  Pick,  3  Mees.  &  W.  481;  Baker  v.  Barney,  8  Johns.  (N.  Y.)  72, 
5  Am.  Dec.  326;  Kemp  v.  Downham,  5  Har.  (Del.)  417. 

• 7  Hodgkinson  v.  Fletcher,  4  Camp.  70;  Emmett  v.  Norton,  8  Car.  &  P. 
506;  Pearson  v.  Darrington,  32  Ala.  227. 

»8  Eastland  v.  Burchell,  3  Q.  B.  Div.  432.  In  this  case  it  was  said:  "The 
authority  of  a  wife  to  pledge  the  credit  of  her  husband  is  a  delegated,  not 
an  inherent,  authority.  If  she  binds  him,  she  binds  him  only  as  his  agent. 
This  is  a  well-established  doctrine.  If  she  leaves  him  without  cause  and 
without  consent,  she  carries  no  implied  authority  with  her  to  maintain 
herself  at  his  expense.  But  if  he  wrongfully  compels  her  to  leave  his  home, 
he  is  bound  to  maintain  her  elsewhere,  and  if  he  makes  no  adequate  pro- 
vision for  this  purpose  she  becomes  an  agent  of  necessity  to  supply  hoi- 
wants  upon  his  credit.  In  such  a  case,  inasmuch  as  she  is  entitled  to  a 
provision  suitable  to  her  husband's  means  and  position,  the  sufficiency  of 
any  allowance  which  he  makes  under  these  circumstances  is  necessarily  a 


§§  69-70)         CONTRACTS  BY   WIPE  AS   HUSBAND'S   AGENT  179 

Where  the  husband  and  wife  are  living  apart,  the  husband  can- 
not, any  more  than  when  they  are  living  together,"  deprive  his 
wife  of  the  right  to  pledge  his  credit,  where  he  neglects  to  make 
suitable  provision  for  her,  by  giving  notice  that  he  will  not  be 
responsible  for  her  necessaries.1  As  has  already  been  stated,  a 
husband  is  not  liable  for  necessaries  furnished  his  wife  where  cred- 
it was  given  to  her,  and  not  to  him,2  nor  where  she  has  a  separate 
and  sufficient  income.3 

What  are  Necessaries  for  the  Wife 

The  necessaries  for  which  a  wife  may  pledge  her  husband's  cred- 
it under  the  rules  which  have  just  been  explained  are  those  things 
which  are  essential  to  her  health  and  comfort,  according  to  the 
rank  and  fortune  of  her  husband.  Necessaries,  as  applied  to  a  wife, 
are  not  confined  to  those  articles  of  food  and  clothing  which  are 
required  to  sustain  life  and  preserve  decency,  but  include  such  ar- 
ticles of  utility  as  are  suitable  to  maintain  her  according  to  the 
estate  and  degree  of  her  husband.4  Wearing  apparel,6  medical 

question  for  the  jury.  Where,  however,  the  parties  separate  by  mutual 
consent,  they  may  make  their  own  terms;  and  so  long  as  they  continue  the 
separation  these  terms  are  binding  upon  both.  Where  the  terms  are,  as  in 
this  case,  that  the  wife  shall  receive  a  specified  income  for  her  maintenance 
and  shall  not  apply  to  the  husband  for  anything  more,  how  can  any  au- 
thority to  claim  more  be  implied?  It  is  excluded  by  the  express  terms  of 
the  arrangement."  And  see  Johnson  v.  Sumner,  27  Law  J.  Exch.  341 ;  Alley 
v.  Winn,  134  Mass.  77,  45  Am.  Rep.  297. 
»»Ante,  p.  172. 

1  Harris  v.  Morris,  4  Esp.  41 ;    Bolton  v.  Prentice,  2  Strange,  1214 ;    W. 
&  J.   Sloane  v.  Boyer   (Sup.)  95  N.  Y.   Supp.  531;    Pierpont  v.  Wilson,  49 
Conn.  450;   Black  v.  Bryan,  18  Tex.  453;    Watkins  v.  De  Armond,  89  Ind.  553. 

2  Skinner  v.  Tirrell,  159  Mass.  474,  34  N.  E.  692,  21  L.  R.  A.  673,  38  Am. 
St.  Rep.  447;    Jewsbury  v.  Newbold,  26  Law  J.  Exch.  247;    Pearson  v.  Dar- 
rington,  32  Ala.  227;    Stammers  v.  Maconlb,  2  Wend.  (N.  Y.)  454;    Moses  v. 
Fogartie,  2  Hill  (S.  C.)  335 ;    Carter  v.  Howard,  39  Vt.  106. 

s  Freestone  v.  Butcher,  9  Car.  &  P.  643 ;  Swett  v.  Penrice,  24  Miss.  416 ; 
Weisker  v.  Lowenthal,  31  Md.  413. 

4  Raynes  v.  Bennett,  114  Mass.  424 ;  Gately  Outfitting  Co.  v.  Vinson  (Mo. 
App.)  182  S.  W.  133 ;  Wilder  v.  Brokaw,  141  App.  Div.  811,  126  N.  Y.  Supp. 
932 ;  Wickstrom  v.  Peck,  163  App.  Div.  608,  148  N.  Y.  Supp.  596 ;  Brown 
v.  Moudy,  199  111.  App.  85.  See,  also,  Ross  v.  Johnson,  125  111.  App.  65, 
holding  that  the  test  is  not  wholly  whether  the  article  is  necessary  and 
useful.  A  set  of  "Stoddard's  Lectures,"  purchased  by  a  wife,  was  not  neces- 
saries for  which^the  husband  was  liable  by  virtue  of  the  marital  relation. 
Shuman  v.  Steinel,  129  Wis.  422,  109  N.  W.  74,  7  L.  R.  A.  (N.  S.)  1048,  116 
Am.  St.  Rep.  961,  9  Ann.  Cas.  1064. 

s  Hardenbrook  v.  Harrison.  11  Colo.  9,  17  Pac.  72 ;  Fitzmaurice  v.  Buck, 
77  Conn.  300,  59  Atl.  415 ;  FEINER  v.  BOYNTON,  73  N.  J.  Law,  136,  62  Atl. 


180       CONTRACTS,  CONVEYANCES,  AND  QUASI  CONTRACTS     (Ch.  4 

attendance,8  reasonable  dentistry,7  household  supplies,8  furniture,' 
a  gold  watch  and  certain  jewelry,10  have  been  held  to  be  neces- 
saries. Legal  expenses  incident  to  a  suit  for  restitution  of  con- 
jugal rights,11  or  incident  to  a  suit  for  divorce,  where  there  is 
reasonable  cause  for  instituting  suit,12  have  also  been  held  to  be 
necessaries.  By  the  weight  of  authority  in  this  country,  however, 
legal  expenses  in  suits  for  divorce  are  not  necessaries.18  As  was 
said  by  the  Connecticut  court :  "The  duty  of  providing  necessaries 
for  the  wife  is  strictly  marital,  and  is  imposed  by  the  common  law 
in  reference  only  to  a  state  of  coverture,  and  not  of  divorce.  By 
that  law  a  valid  contract  of  marriage  was  and  is  indissoluble,  and 
therefore  by  it  the  husband  could  never  have  been  placed  under 
obligation  to  provide  for  the  expenses  of  its  dissolution."  14  Legal 


420,  Cooley  Cas.  Persons  and  Domestic  Relations,  84;  Ross  v.  Johnson,  125 
111.  App.  65. 

e  Harris  v.  Lee,  1  P.  Wms.  482 ;  Mayhew  v.  Thayer,  8  Gray  (Mass.)  172 ; 
Cothran  v.  Lee,  24  Ala.  380 ;  Johnson  v.  Coleman,  13  Ala.  App.  520,  69  South. 
318;  Ketterer  v.  Nelson,  146  Ky.  7,  141  S.  W.  409,  37  L.  R.  A.  (N.  S.)  754; 
Thrall  Hospital  v.  Caren,  140  App.  Div.  171,  124  N.  Y.  Supp.  1038 ;  Schneider 
v.  Rosenbaum,  52  Misc.  Rep.  143, 101  N.  Y.  Supp.  529  (services  of  nurse).  Web- 
ber v.  Spannhake,  2.Redf.  Sur.  (N.  Y.)  258. 

7  Freeman  v.  Holmes,  62  Ga.  556 ;  Gilman  v.  Andrus,  28  Vt.  241,  67  Am. 
Dec.  713 ;  Clark  v.  Tenneson,  146  Wis.  65,  130  N.  W.  895,  33  L.  R.  A.  (N.  S.) 
426,  Ann.  Cas.  1912C,  141. 

a  Hall  v.  Weir,  1  Allen  (Mass.)  261 ;  Fischer  v.  Brady,  47  Misc.  Rep.  401, 
94  N.  Y.  Supp.  25 ;  Perkins  v.  Morgan,  36  Colo.  360,  85  Pac.  640. 

9  Hunt  v.  De  Blaquiere,  5  Bing.  550.     But  see  Caldwell  v.  Blanchard,  191 
Mass.  489,  77  N.  E.  1036,  as  to  purchase  by  wife  on  her  own  credit 

10  Raynes  v.  Bennett,  114  Mass.  424;    Cooper  v.  Haseltine,  50  Ind.  App. 
400,  98  N.  E.  437. 

11  Wilson  v.  Ford,  L.  R.  3  Exch.  63. 

12  Brown  v.  Ackroyd,  25  Law  J.  Q.  B.  193 ;    Ottaway  v.  Hamilton,  3  C.  P. 
Div.  393;    Porter  v.  Briggs,  38  It>wa,  166,  18  Am.  Rep.  27.     In  the  latter 
case  it  was  held  that  it  must  be  shown  that  the  services  were  necessary 
for  the  protection  of  the  wife's  person,  liberty,  or  reputation,  distinguishing 
Johnson  v.  Williams,  3  G.  Greene  (Iowa)  97,  54  Am.  Dec.  491,  where  legal 
services  in  divorce  proceedings  were  held  not  to  be  necessaries. 

is  Pearson  v.  Darrington,  32  Ala.  227 ;  Zent  v.  Sullivan,  47  Wash.  315,  91 
Pac.  1088,  13  L.  R.  A.  (N.  S.)  244,  15  Ann.  Cas.  19;  Clarke  v.  Burke,  65 
Wis.  359,  27  N.  W.  22,  56  Am.  Rep.  631;  Morrison  v.  Holt,  42  N.  H.  478, 
80  Am.  Dec.  120;  Johnson  v.  Williams,  3  G.  Greene  (Iowa)  97,  54  Am, 
Dec.  491 ;  Wing  v.  Hurlburt,  15  Vt.  607,  40  Am.  Dec.  695 ;  Dorsey  v.  Goode- 
now,  Wright  (Ohio)  120;  Williams  v.  Monroe,  18  B.  Mon.  (Ky.)  514;  Dow 
v.  Eyster,  79  111.  254;  Shelton  v.  Pendleton,  18  Conn/423;  Meaher  v. 
Mitchell,  112  Me.  416,  92  Atl.  492,  L,  R.  A.  1915C,  467,  Ann.  Cas.  1917A, 
688;  Coffin  v.  Dunham.  8  Gush.  (Mass.)  404,  54  Am.  Dec.  769. 

i*  Shelton  v.  Pendleton,  IS  Conn.  423. 


§§  69-70)         CONTRACTS   BY   WIFE   AS   HUSBAND'S  AGENT  181 

services   rendered   in   successfully    defending  a   married   woman 
against  a  criminal  prosecution  are  clearly  necessaries.15 

Money  is  not  to  be  regarded  as  necessaries.  "At  law  it  is  entirely 
clear  that  a  married  woman  has  no  right,  to  borrow  money  on  her 
husband's  credit,  even. for  the  purchase  of  necessaries."18  There 
are  a  number  of  cases  which  hold  that  where  a  person  has  lent 
money  to  a  wife  deserted  by  her  husband  for  the  purchase  of  neces- 
saries (even,  it  seems,  where  the  loan  is  to  the  wife,  and  not  on  the 
husband's  credit),  and  the  money  has  been  so  used,  he  can  recover 
it  from  the  husband  in  equity.17  This  doctrine,  however,  is  not 
clear  on  principle;  and  it  has  lately  been  expressly  repudiated  in 
Massachusetts,  on  the  ground  that  there  is  no  principle  upon  which 
it  can  be  sustained.18  As  far  as  precedent  is  concerned,  the  rule  is 
amply  sustained,  but  the  reasoning  of  the  Massachusetts  court  in 
the  case  referred  to  renders  it  very  doubtful. 

16  Conant  v.  Burnham,  133  Mass.  503,  43  Am.  Rep.  532.     And  see  dictum 
in  Porter  v.  Briggs,  38  Iowa,  166,  18  Am.  Rep.  27.     Protection  of  a  wife's 
character  in  a  suit  against  her  by  employing  counsel  is  as  much  a  necessary 
as  food,  etc.,  within  the  rule  requiring  one  to  provide  his  wife  with  nec- 
essaries suitable  to  their  station  in  life.     Hamilton  v.   Salisbury,   133  Mo. 
App.  718,  114  S.  W.  563. 

le  Skinner  v.  Tirrell,  159  Mass.  474,  34  N.  E.  692,  21  L.  R.  A.  673,  38 
Am.  St.  Rep.  447.  A  husband  is  not  liable  for  money  loaned  to  his  wife  with 
which  to  pay  for  a  dress  ordered  by  her;  she  not  being  abandoned,  and  he 
not  having  promised  to  repay  the  loan.  Reitman  v.  Scheyer  (Sup.)  165  N. 
Y.  Supp.  452. 

17  Harris  v.  Lee,  1  P.  Wms.  482 ;    Marlow  v.  Pitfeild,  Id.,  559 ;    Deare  v. 
Soutten,  L.  R.  9  Eq.  151;    Jenner  v.  Morris,  3  De  Gex,  F.  &  J.  43;    Kenyon 
v.  Farris,  47  Conn.  510,  36  Am.  Rep.  86;    Walker  v.  Simpson,  7  Watts  &  S. 
(Pa.)  83,  42  Am.  Dec.  216;    Leuppie  v.  Osborn's  Ex'rs,  52  N.  ,T.  Eq.  637,  29 
Atl.  433 ;   De  Brauwere  v.  De  Brauwere,  203  N.  Y.  460,  96  N.  E.  722,  38  L.  R. 
A.   (N.   S.)  508,  affirming  144  App.  Div.  521,  129  N.   Y.   Supp.  587.     Before 
plaintiff  can  recover  from  defendant  for  money  advanced  to  defendant's  wife, 
after  notice  that  defendant  would  not  be  responsible  for  his  wife's  debts, 
lie  must  show  defendant's  financial  condition,  his  failure  to  provide  for  his 
wife,  and  that  the  money  was  advanced  for  necessaries.     Klopfer  v.  Mitten- 
thai  (Sup.)  117  N.  Y.  Supp.  93. 

i*  Skinner  v.  Tirrell,  159  Mass.  474,  34  N.  E.  692,  21  L.  R.  A.  673,  38  Am. 
St.  Rep.  447. 


182       CONTRACTS,  CONVEYANCES,  AND  QUASI  CONTRACTS     (Ch.  4 

HUSBAND'S  LIABILITY  FOR  WIFE'S  FUNERAL  EX- 
PENSES 

71.  It  is  the  husband's  duty  to  give  his  wife  burial,  and,  where  he 
neglects  it,  he  will  be  liable  for  the  necessary  funeral  ex- 
penses to  any  one  who  pays  them. 

Analogous  to  the  husband's  liability  for  necessaries  purchased  by 
his  wife  on  his  credit,  where  he  neglects  to  provide  for  her,  is  the 
liability  imposed  upon  him  by  law  to  pay  her  necessary  funeral 
expenses.  The  common  law  imposes  upon  the  husband  the  duty  of 
giving  his  wife  a  proper  burial ;  and  if  he  neglects  to  perform 
this  duty,  and  some  other  person  performs  it,  and  pays  the  neces- 
sary funeral  expenses,  he  may  recover  the  money  paid  from  the 
husband,  by  an  action  quasi  ex  contractu,  as  for  money  paid  to 
the  use  of  the  husband;  or  if  he  furnishes  the  coffin  and  other 
things  necessary  for  the  burial,  he  may  recover  their  value.19  In 
the  case  of  necessaries  purchased  by  the  wife  on  the  credit  of  her 
husband,  the  latter's  liability  is  based  on  the  theory  of  agency; 
but  it  is  agency  in  law  only,  or  quasi  agency,  for  there  is  no  agency 
in  fact.  In  the  case  of  funeral  expenses  of  the  wife,  the  husband's 
liability  is  not  necessarily  based  on  any  theory  of  agency.  In  both 
cases  the  real  ground  of  his  liability  is  the  same,  resting,  as  it  does 
on  the  duty  of  the  husband  which  he  has  neglected,  and  which  an- 
other has  performed  for  him.  In  both  cases  the  law  imposes  a  lia- 
bility quasi  ex  contractu. 

Since  the  husband  is  liable  for  his  wife's  funeral  expenses,  it 
would  seem  to  follow  necessarily  that  when  he  pays  them  he  pays 
his  own  debt,  and,  in  the  absence  of  any  agreement,  is  not  entitled 
to  reimbursement  out  of  the  wife's  separate  estate;  and  it  has 
been  so  held.20  Some  of  the  courts,  however,  have  taken  the  con- 
trary view.21 

"Ambrose  v.  Kerrison,  20  Law  J.  C.  P.  135;  Bradshaw  v.  Beard,  12  C. 
B.  (N.  S.)  344 ;  Jenkins  v.  Tucker,  1  H.  Bl.  90 ;  Cunningham  v.  Reardon, 
98  Mass.  538,  96  Am.  Dec.  670;  Sears  v.  Giddey,  41  Mich.  590,  2  N.  W.  917, 
32  Am.  Rep.  168;  Ketterer  v.  Nelson,  146  Ky.  7,  141  S.  W.  409,  37  L.  R. 
A.  (N.  S.)  754;  Stone  v.  Tyack,  164  Mich.  550,  129  N.  W.  694;  Gustin  v. 
Bryden,  205  111.  App.  204. 

20  Smyley  v.  Reese,  53  Ala.  89,  25  Am.  Rep.  598 ;   Staples'  Appeal,  52  Conn. 
425 ;    In  re  Weringer's  Estate,  100  Cal.  345,  34  Pac.  825. 

21  Gregory  v.  Lockyer,  6  Madd.  90;   In  re  McMyn,  33  Ch.  Div.  575;   McCue 


§  72)     HUSBAND'S  LIABILITY  FOR  WIFE'S  ANTENUPTIAL  DEBTS      183 

The  husband's  liability  is  not  affected  by  the  fact  that  the  wife 
left  property  by  a  will  to  another  person,  and  that  the  latter  as- 
sisted in  the  arrangements  and  direction  of  the  funeral.22  And  the 
fact  that  the  wife  is  living  apart  from  her  husband,  through  her 
own  fault,  though  it  would  relieve  him,  as.  has  been  shown,  from 
liability  for  her  necessaries,  will  not  relieve  him  from  liability  for 
her  funeral  expenses.23 


72.  The  husband  becomes  liable  on  marriage  for  his  wife's  ante- 
nuptial debts.  But  his  liability  lasts  only  during  the  cov- 
erture, after  which  the  liability  of  the  wife  revives.  This 
liability  has  been  very  generally  abolished  by  statute. 

The  husband  is  liable  during  coverture  for  the  debts  contracted 
by  his  wife  while  sole.24  His  liability,  however,  continues  only 
during  coverture,  and  debts  not  put  in  judgment  during  that  time 
cannot  thereafter  be  enforced  against  him.25  Although  he  may 
have  received  a  large  fortune  in  acquiring  his  wife's  personal  prop- 
erty by  the  marriage,  yet  he  retains  the  same,  on  her  death,  free 

v.  Garvey,  14  Hun  (N.  Y.)  562;  McClellan  v.  Filson,  44  Ohio  St.  184,  5  N. 
E.  861,  58  Am.  Rep.  814  (in  this  case,  however,  the  funej-al  expenses  were 
paid  out  of  the  wife's  estate  by  her  executor,  not  the  husband).  In  this 
connection  see,  also,  Schneider  v.  Breier's  Estate,  129  Wis.  446,  109  N.  W. 
99,  6  L.  R.  A.  (N.  S.)  917,  where  it  was  held  that  the  statute  (St.  1898,  §§ 
2341,  2342)  exempting  the  separate  estate  of  ,a  married  woman  from,  lia- 
bility for  the  husband's  debts  does  not  exempt  her  estate  from  liability 
for  her  funeral  expenses,  though  the  materials  and  labor  were  ordered  by 
the  husband  and  he  would  be  liable  at  common  law.  St.  1898,  §  3852,  pro- 
vides that  funeral  expenses  shall  be  paid  from  the  estate  of  the  decedent,  and 
does  not  except  from  the  operation  thereof  the  estate  of  a  married  woman 
decedent. 

22  Sears  v.  Giddey,  41  Mich.  590,  2  N.  W.  917,  32  Am.  Rep.  168. 

23  Seybold  v.  Morgan,  43  111.  App.  39. 

2*1  Bl.  Comm.  443;  2  Kent,  Comm.  143;  Thomond  v.  Suffolk,  1  P.  Wms. 
462,  469;  Heard  v.  Stamford,  3  P.  Wms.  409;  Barnes  v.  Underwood,  47  N. 
Y.  351;  Cole  v.  Shurtleff,  41  Vt.  311,  98  Am.  Dec.  587;  Platner  v.  Patchin, 
19  Wis.  333;  Howes  v.  Bigelow,  13  Mass.  384;  Bryan  v.  Doolittle,  3S  Ga. 
255;  Hetrick  v.  Hetrick,  13  Ind.  44;  Morrow  v.  Whitesides'  Ex'r,  10  B. 
Mon.  (Ky.)  411 ;  Heyman  v.  Heyman,  19  Ga.  App.  634,  92  S,,  E.  25 ;  Haw- 
thorne v.  Beckwith,  89  Va.  786,  17  S.  E.  241. 

?B  See  the  cases  cited  above. 


184       CONTRACTS,  CONVEYANCES,  AND  QUASI  CONTRACTS    (Ch.  4 

from  any  liability  to  answer  for  her  antenuptial  debts.26  And  even 
a  court  of  equity  will  not  help  creditors  in  subjecting  what  the  hus- 
band has  received  to  their  claims.27  The  husband  is  equally  liable 
for  his  wife's  debts  contracted  dum  sola  where  she  brings  him  no 
fortune.28  Her  choses  in  action,  not  reduced  to  possession  by  the 
husband  during  coverture,  however,  may  be  reached  by  the  wife's 
creditors  after  her  death.29  On  the  theory  that  the  husband's  li- 
ability for  his  wife's  debts  rests  on  the  fact  that  marriage  vests 
in  the  husband  all  his  wife's  chattels,  and  the  right  to  reduce  her 
choses  in  action  to  possession,  whether  the  husband  is  an  infant 
or  not,  it  is  held  that  an  infant  husband  is  liable  for  his  wife's 
debts.80  The  husband's  liability  is  limited  to  the  obligations  that 
were  legally  binding  on  his  wife;  and  hence,  if  his  wife  was  an 
infant,  he  is  only  liable  for  her  necessaries.81  If  the  wife  survives 
her  husband,  she  again  becomes  liable  for  her  debts  contracted  dum 
sola,  although  she  may  have  brought  her  husband  a  fortune  from 
which  he  has  neglected  to  pay  them.82  In  an  action  to  enforce  the 
husband's  liability,  the  husband  and  wife  must  be  sued  jointly.8* 
In  most  states  by  statute  the  common-law  liability  of  the  husband 
for  his  wife's  antenuptial  debts  has  been  abolished.8* 

2«  Heard  v.  Stamford,  3  P.  Wms.  409;  Thomond  v.  Suffolk,  1  P.  Wms.  469; 
Barnes  v.  Underwood,  47  N.  Y.  351;  Cureton  v.  Moore,  55  N.  C.  204. 

2  7  Heard  v.  Stamford,  3  P.  Wms.  409;  Morrow  v.  Whitesides'  Ex'r,  10  B. 
Mon.  (Ky.)  411;  Cureton  v.  Moore,  55  N.  C.  204. 

28  Thomond  v.  Suffolk,  1  P.  Wms.  469. 

2»  Heard  v.  Stamford,  3  P.  Wms.  409;   ante,  p.  131. 

so  Reeves,  Dom.  Rel.  234;  Roach  v.  Quick,  9  Wend.  (N.  Y.)  238;  Butler  v. 
Breck,  7  Mete.  (Mass.)  164,  39  Am.  Dec.  768;  Cole  v.  Seeley,  25  Vt  220,  6O 
Am.  Dec.  258. 

si  Anderson  v.  Smith,  33  Md.  465;    Bonney  v.  Reardin,  6  Bush  (Ky.)  34. 

82  Woodman  v.  Chapman,  1  Camp.  189 ;  Parker  v.  Steed,  1  Lea  (Tenn.)  206. 

ss  Mitchinson  v.  Hewson,  7  Term  R.  348;  Gage  v.  Reed,  15  Johns.  (N.  Y.) 
403;  Cole  v.  Shurtleff,  41  Vt.  311,  98  Am.  Dec.  587;  Plainer  v.  Patchln,  1£ 
Wis.  333. 

s<  See  the  statutes  of  the  various  states;  Smith  v.  Martin,  124  Mich.  34, 
82  X.  W.  662 ;  Taylor  v.  Rountree,  15  Lea  (Tenn.)  725 ;  Baker  v.  Lukens,  35 
Pa.  146;  Johnson  v.  Griffiths  &  Co.  (Tex.  Civ.  App.)  135  S.  W.  683;  Zach- 
ary  v.  Cadenhead,  40  Ala.  236.  See,  also,  Clark  v.  Miller,  88  Ky.  108,  10 
S.  W.  277,  holding  that  under  the  Kentucky  statute  the  husband  is  not 
liable  except  to  the  amount  he  may  hnve  received  from  the  wife.  But  see 
Kies  v.  Young,  64  Ark.  381,  42  S.  W.  669,  62  Am.  St.  Rep.  198;  Ferguson 
v.  Williams,  65  Ark.  631,  44  S.  W.  1126 ;  McMurtry  v.  Webster,  48  111.  123 ; 
Connor  v.  Berry,  46  111.  370,  95  Am.  Dec.  417;  Alexander  v.  Morgan,  31 
Ohio  St.  546. 


§  73)     WIFE'S  EQUITABLE  AND  STATUTORY    SEPARATE  ESTATE      185 

CHAPTER  V 
WIFE'S    EQUITABLE    AND    STATUTORY    SEPARATE    ESTATE 

73.  Equitable  Separate  Estate.  , 

74.  Jus    Disponendi. 

75-77.  Power    to    Charge   by   Contract. 

78.  Statutory    Separate   Estate. 

79.  Jus  Disponendi. 

80-82.  Power  to  Charge  by  Contract. 

The  extent  to  which  property  rights  are  affected  by  coverture 
at  common  law,  and  the  power  of  a  married  woman,  at  common 
law,  to  dispose  of  her  property,  and  to  enter  into  contracts,  have 
been  explained.  Attention  was  also  called  to  the  fact  that  the 
common-law  doctrine  does  not  apply  to  the  full  extent  in  equity, 
nor  under  modern  statutes.  In  this  chapter  the  doctrine  of  courts 
of  equity  in  relation  to  property  settled  to  the  separate  use  of 
the  wife,  called  her  "equitable  separate  estate,"  including  her  power 
to  dispose  of  the  same,  and  contract  in  relation  to  it,  will  be  ex- 
plained. The  law  governing  the  separate  statutory  estate  of  a  mar- 
ried woman,  and  her  powers  in  relation  thereto,  will  then  be  con- 
sidered. 

EQUITABLE  SEPARATE  ESTATE 

73.  In  equity,  a  married  woman  may  hold  as  a  feme  sole,  and  free 
from  the  control  of  her  husband,  property,  real  or  personal, 
settled  to  her  sole  and  separate  use.  To  create  an  equi- 
table separate  estate  in  the  wife,  there  must  be  an  intention 
that  the  wife  shall  take,  and  that  the  husband  shall  not. 

To  mitigate  the  hardships  arising  from  the  rules  of  the  common 
law  giving  to  the  husband  rights  in  his  wife's  property,  equity  has 
recognized,  or  rather  created,  a  doctrine  by  which  a  married  woman 
may  acquire  and  hold  a  separate  estate,  both  real  and  personal, 
independently  of  her  husband,  and  free  from  his  control.1  For  this 
purpose  equity  treats  married  women,  in  relation  to  their  separate 

i  A  married  woman's  separate  estate  is  a  creation  of  equity,  devised  for 
her  protection  to  evade  the  harsh  and  unjust  dogmas  of  the  law  with  re- 
spect to  the  rights  of  her  husaand  over  her  property,  which  exist  only  during 
coverture,  is  suspended  by  discoverture,  and  revives  upon  remarriage,  unless 


186        WIFE'S  EQUITABLE  AND  STATUTORY  SEPARATE  ESTATE     (Ch.  5 

property,  as  if  sole.2  This  doctrine'  is  a  creature  of  equity  only, 
and  was  unknown  to  the  common  law.  The  doctrine  applies  only 
to  property  held  to  the  wife's  separate  use  by  the  terms  of  some 
agreement  or  conveyance,  as  under  antenuptial  or  postnuptial 
agreements  with  her  husband,  gifts  from  her  husband  or  strangers, 
or  conveyances,  devises,  or  bequests.8  Trust  estates,  not  lim- 
ited to  her  separate  use,  are  not  equitable  separate  estates  falling 
within  this  rule.4 

It  is  well  settled  that  to  create  an  equitable  separate  estate  the 
intention  to  create  it  must  clearly  appear.  As  has  often  been  said 
in  the  cases,  the  words  used  in  the  grant  or  other  instrument  must 
clearly  show  that  it  is  intended  that  the  wife  shall  take,  and  the 
husband  shall  not.  If  this  definitely  appears,  the  form  of  the  words 
is  immaterial.5  No  trustee  need  be  named  for  the  wife.  If  no 


defeated  during  the  intermediate  period.  Littleton  v.  Sain,  126  Tenn.  461, 
150  S.  W.  423,  41  L.  R.  A.  (X.  S.)  1118. 

2  Hulme  v.  Tenant,  1  Brown,  Ch.  16,  1  White  &  T.  Lead.  Cas.  Eq.  679,  and 
authorities  there  cited;  Jaques  v.  Methodist  Episcopal  Church,  17  Johns. 
(X.  Y.)  549,  8  Am.  Dec.  447.  And  see  authorities  hereinafter  referred  to. 

33  Pom.  Eq.  Jur.  §  1101;  Holliday  v.  Hlvely,  198  Pa.  335,  47  Atl.  988; 
Wallace  v.  Wallace,  82  111.  530;  Musson  v.  Trigg,  51  Miss.  172;  Harris  v. 
McElroy,  45  Pa.  216 ;  Lovewell  v.  Schoolfield,  217  Fed.  689,  133  C.  C.  A.  449, 
certiorarl  denied  Hill  v.  Lovewell,  239  U.  S.  644,  36  Sup.  Ct.  165,  60  L.  Ed. 
483;  Neville  v.  Cheshire,  103  Ala.  300,  50  South.  1005;  Rutledge  v.  Rutledge, 
177  Mo.  App.  469,  119  S.  W.  489;  Stark  v.  Kirchgraber,  186  Mb.  633,  85 
S.  W.  868,  105  Am.  St.  Rep.  629.  While  the  quality  of  a  wife's  separate  es- 
tate as  such  ceases  when  she  becomes  discovert,  yet,  upon  her  remarriage, 
property  which,  during  the  lifetime  of  her  first  husband,  belonged  to  her  as 
part  of  her  separate  estate,  again  partakes  of  that  equity.  Hughey  v.  Warn- 
er, 124  Tenn.  725,  140  S.  W.  1058,  37  L.  R.  A.  (N.  S.)  582.  Where  in  1859,  a 
married  woman  received  a  gift  of  money,  donor  intending  that  it  should 
be  for  her  separate  use,  and  after  receiving  it  woman  delivered  money  to  her 
husband,  who  by  investment  in  other  property  mingled  it  with  his  individual 
estate,  such  property  became  separate  estate  for  use  of  wife;  husband  holding 
as  implied  trust  Garner  v.  Lankford,  147  Ga.  235,  93  S.  E.  411. 

<  3  Pom.  Eq.  Jur.  §  1098 ;   Taylor  v.  Meads,  4  De  Gex,  J.  &  S.  597. 

"Buck  v.  Wroten,  24  Grat.  (Va.)  250;  Travis  v.  Sitz,  135  Tenn.  156,  185 
S.  W.  1075,  L.  R.  A.  1917A,  671;  Rixey's  Adm'r  v.  Deitrick,  85  Va.  42,  6 
S.  E.  617.  The  word  "separate"  has  acquired  a  technical  meaning,  and 
where  it  is  used  in  this  connection,  it  is  sufficient  to  create  a  separate 
estate.  But  the  word  "sole'1  has  not  necessarily  this  effect.  Massy  v.  Row- 
en,  L.  R.  4  H.  L.  288.  The  courts  have  held  sufficient  the  words  "for  her 
sole  and  separate  use."  Good  rum  v.  Goodruin,  43  N.  C.  313 ;  Parker  v. 
Brooke,  9  Ves.  583,  587;  "as  her  separate  estate,"  Fox  v.  Hawkes,  13  Ch. 
Div.  822;  Swain  v.  Duane,  48  Cal.  358;  "for  her  own  use,  independent  of 
her  husband,"  Wagstaff  v.  Smith,  9  Ves.  520;  "for  her  own  use  and  bene- 
fit, independent  of  any  other  person,"  Margetts  v.  Barringer,  7  Sim.  482; 


§  74)        POWER    TO   DISPOSE   OF   EQUITABLE   SEPARATE    ESTATE  187 

one  is  named  as  trustee,  equity  will  nevertheless  treat  the  property 
as  her  separate  estate,  and  hold  the  husband  as  trustee.6 

The  property  settled  to  a  wife's  separate  use  may  be  real  or  per- 
sonal or  any  interest  therein,  as  well  as  the  rents  and  income 
therefrom,7  and  investments  made  from  the  savings  of  such  rents 
or  income  8  or  from  the  proceeds  of  sales.9  Personal  property  in 
possession,  settled  to  the  separate  use  of  the  wife,  and  not  dis- 
posed of  by  her,  passes  to  the  husband  on  her  death  jure  mariti, 
and  not  to  her  personal  representatives,  for  a  wife's  separate  es- 
tate lasts  only  during  coverture.10 

POWER    TO    DISPOSE  OF   EQUITABLE  SEPARATE   ES- 
TATE 

74.  In  most  jurisdictions  a  married  woman  has  the  power  to  dis- 
pose of  her  equitable  separate  estate,  real  or  personal, 
though  no  power  to  do  so  is  expressly  conferred  by  the  in- 
strument creating  it,  provided  the  power  is  not  expressly 
excluded.  In  some  jurisdictions  it  is  held  that  the  power 
must  be  expressly  conferred. 

Whether  or  not  a  married  woman  has  the  power  to  dispose  of 
her  equitable  separate  estate  is  a  question  upon  which  the  author- 
ities are  in  direct  conflict.  It  has  been  established  by  the  court  of 
chancery  in  England,  and  the  doctrine  is  recognized  in  some  of  our 

"that  she-  shall  receive  and  enjoy  the  issues  and  profits,"  Tyrrell  v.  Hope, 
2  Atk.  561.  The  courts  have  passed  on  the  sufficiency  of  innumerable  phras- 
es. For  a  collection  of  the  cases,  see  the  notes  to  3  Pom.  Eq.  Jur.  §  1102, 
and  Stew.  Husb.  &  W.  §  200.  The  principle  is  well  settled  that,  as  held  in 
Re  Peacock's  Trusts,  10  Ch.  Div.  490,  an  intention  must  appear  that  the 
wife  shall  take,  and  that  the  husband  shall  not;  but  there  are  many  in- 
consistencies in  the  cases  in  applying  this  principle  to  particular  words. 

e  Story,  Eq..  Jur.  §  1380,  3  Pom.  Eq.  Jur.  §  1100 ;  Bennet  v.  Davis,  2  P. 
Wms.  316;  Newlands  v.  Paynter,  4  Mylne  &  C.  408 ;  Jones  v.  Clifton,  101 
TL  S.  225,  25  L.  Ed.  908 ;  Porter  v.  Bank  of  Rutland,  19  Vt.  410 ;  Firemen's 
Ins.  Co.  of  Albany  v.  Bay,  4  Barb.  (N.  Y.)  407 ;  Varner's  Appeal,  80  Pa.  140. 

7  3  Pom.  Eq.  Jur.  §  1103 ;  Cheever  v.  Wilson,  9  Wall.  108,  19  L.  Ed.  604 ; 
Vizonneau  v.  Pegram,  2  Leigh  (Va.)  183. 

s  Barrack  v.  McCulloch,  3  Kay  &  J.  110;  Gore  v.  Knight,  2  Vern.  535. 
But  see,  contra,  Ordway  v.  Bright,  7  Heisk.  (Tenn.)  681. 

»Justis  v.  English,  30  Grat  (Va.)  565;  City  Nat.  Bank  of  Providence, 
R  L,  v.  Hamilton.  34  N.  J.  Eq.  158. 

i  o  2  Macq.  Husb.  &  W.  288 ;  Molony  v.  Kennedy,  10  Sim.  254. ;  Brown's 
Adm'rs  v.  Brown's  Adm'rs,  6  Humph.  (Tenn.)  127. 


188        WIFE'S  EQUITABLE  AND  STATUTORY  SEPARATE  ESTATE     (Ch.  5 

states,  that,  even  though  no  power  to  dispose  of  her  separate  equi- 
table estate  is  expressly  conferred  by  the  instrument  creating  it,  she 
has  such  power,  on  the  theory  that  the  power  is  a  necessary  incident 
of  the  estate.11  According  to  this  doctrine,  she  may  dispose  of  her 
equitable  separate  estate,  whether  it  is  real  or  personal,  either  by 
will,  or  by  gifts,  transfers,  or  conveyances,  provided  the  instru- 
ment creating  the  estate  does  not  expressly  or  by  clear  implication 
restrain  her  from  doing  so.  And  she  may  do  so  without  the  con- 
sent or  concurrence  of  her  husband  or  her  trustee,  in  the  absence 
of  express  restraint  in  the  instrument.12  In  some  states  the  courts 
have  refused  to  recognize  this  doctrine,  and  have  held  that  a  wife 
has  no  power  to  dispose  of  her  equitable  separate  estate,  unless  the 
power  has  been  expressly  conferred.13 

Where  the  wife  has  the  unrestricted  power  to  dispose  of  her  equi- 
table separate  estate,  she  may  dispose  of  it  in  any  way  she  may  see 
fit,  and  she  may  therefore  give  or  convey  it  to  her  husband  as  well 
as  to  any  other  person ;  but  the  disposition  in  such  a  case  "must  be 
free, — neither  the  result  of  flattery,  nor  of  force,  nor  harsh  and  cruel 
treatment."  14 

11  Fettiplace  v.  Gorges,  1  Ves.  Jr.  46;   Rich  v.  Cockell,  9  Ves.  369;   Lech- 
mere  v.  Brotheridge,  32  Beav.  353;    Farington  v.  Parker,  L.  R.  4  Eq.  116; 
Radford  v.  Carwile,  13  W.  Va.  572;    Frary  v.  Booth,  37  Vt.  78;    Imlay  v. 
Huntington,  20  Conn.  146;   Jaques  v.  Methodist  Episcopal  Church,  17  Johns. 
(N.  Y.)  548,  8  Am.  Dec.  447 ;   Leaycraft  v.  Hedden,  4  N.  J.  Eq.  551 ;   Buchan- 
an v.  Turner,  26  Md.  1;    Penn  v.  Whitehead,  17  Grat.  (Va.)  503,  94  Am. 
Dec.  478;    Bank  of  Greensboro  v.  Chambers,  30  Grat.  (Va.)  202,  32  Am.  Rep. 
661;   Bain  v.  Buff's  Adm'r,  76  Va.  371;   Collins  v.  Wassell,  34  Ark.  17;    Mill- 
er v.  Voss,  62  Ala.  122 ;    Dallas  v.  Heard,  32  Ga.  604 ;    Smith  v.  Thompson, 
2  MacArthur  (D.  C.)  291;    Miller  v.  Newton,  23  Cal.  554;    Pond  v.  Carpen- 
ter, 12  Minn.  430  (Gil.  315);    Burch  v.  Breckinrklge,  16  B.  Mon.  (Ky.)  482, 
6G  Am.  Dec.  553;    Metropolitan  Bank  of  St.  Louis  v.  Taylor,  53  Mo.  444. 
The  jus  disponendi  extends  to  her  lands  in  fee  in  England.    Taylor  v.  Meads, 
4  De  Gex,  J.  &  S.  597,  604.    But  in  this  country  it  has  been  held  otherwise. 
Radford  v.  Carwile,  13  W.  Va.  572;    Bank  of  Greensboro  v.  Chambers,  30 
Grat.  (\n.)  202,  32  Am.  Rep.  661 ;   Armstrong  v.  Ross,  20  N.  J.  Eq.  109. 

12  Jaques  v.  Methodist  Episcopal  Church,  17  Johns.  (N.  Y.)  548,  8  Am.  Dec. 
447,  and  other  cases  cited  above. 

isEwing  v.  Smith,  3  Desaus.  (S.  C.)  417,  5  Am.  Dec.  557;  Hardy  v.  Hol- 
ly, 84  N.  C.  661;  Holliday  v.  Hively,  198  Pa.  335,  47  Atl.  988;  Maurer's  Ap- 
peal, 86  Pa.  380;  Metcalf  v.  Cook,  2  R,  I.  355  (criticised  in  Ives  v.  Harris, 
7  R.  I.  413) ;  Doty  v.  Mitchell,  9  Smedes  &  M.  (Miss.)  435 ;  Bressler  v.  Kent, 
61  111.  426,  14  Am.  Rep.  67 ;  Hix  v.  Gosling,  1  Lea  (Tenn.)  560. 

i*  Jaques  v,  Methodist  Episcopal  Church,  17  Johns.  (N.  Y.)  549,  8  Am. 
Dec.  447. 


§§  75-77)       POWER  TO  CHARGE  EQUITABLE  ESTATE  BY  CONTRACT      189' 

POWER  TO  CHARGE  EQUITABLE  SEPARATE  ESTATE 

BY  CONTRACT 

75.  In  England,  and  in  most  of  our  states,  a  married  woman  has  the 

power,  as  an.  incident  to  her  separate  estate,  to  charge  it  by 
contract,  unless  the  power  is  excluded  in  the  creation  of  the 
estate.  In  some  states  the  power  must  be  expressly  con- 
ferred. • 

76.  In  England,  and  in  some  of  the  states,  this  power  is  not  limited 

to  contracts  for  the  benefit  of  the  estate,  or  even  for  the 
benefit  of  the  wife  generally.  In  some  states  it  is  so  limit- 
ed. In  others  it  is  limited  to  contracts  for  the  benefit  of 
the  estate  itself. 

77.  In  England,  and  in  all  of  the  states,  the  contract  must  be  made 

upon  the  faith  of  the  estate.  In  England,  and  in  some 
states,  whether  it  was  so  made  is  to  be  ascertained  from  all 
the  surrounding  circumstances.  In  other  states  it  must 
expressly  purport  to  charge  the  estate. 

The  Court  in  Chancery  in  England  having  established  the  doc- 
trine of  the  wife's  separate  property,  it  was  held  to  follow  that  a 
married  woman  could  not  claim  the  protection  of  equity  in  the  en- 
joyment and  disposition  of  her  property  without  being  subject  to- 
the  burdens  incident  to  ownership.  While  her  contracts  were  void 
at  law,  equity  introduced  the  innovation  that,  if  she  entered  into  an 
obligation  which,  if  she  were  sole,  would  constitute  a  personal  obli- 
gation against  her,  and  purported  to  contract  on  the  faith,  and  cred- 
it of  her  separate  estate,  though  she  did  not  render  herself  personal- 
ly liable,  yet  her  separate  estate  was  thereby  charged ;  and  it  was 
considered  to  be  immaterial  whether  the  contract  was  for  the  bene- 
fit of  the  separate  estate  or  not,  or  even  whether  it  was  for  her  bene- 
fit or  not.15  "The  separate  property  of  a  married  woman,"  it  was 
said,  "being  a  creature  of  equity,  it  follows  that,  if  she  has  a  power 
to  deal  with  it,  she  has  the  other  power  incident  to  property  in  gen- 
eral, namely,  the  power  of  contracting  debts  to  be  paid  out  of  it ; 
and,  inasmucn  as  her  creditors  have  not  the  means  at  law  of  com- 
pelling payment  of  those  debts,  a  court  of  equity  takes  upon  itself 

IB  Matthewman's  Case,  L.  R.  3  Eq.  781,  787;  Johnson  v.  Gallagher,  3  De 
Gex,  F.  &  J.  494,  509;  Hnlme  v.  Tenant,  1  Brown,  Ch.  16,  1  White  &  T. 
Lead.  Cas.  Eq.  679,  and  authorities  there  collated. 


190        WIFE'S  EQUITABLE  AND  STATUTORY  SEPARATE  ESTATE     (Ch.  5 

to  give  effect  to  them,  not  as  personal  liabilities,  but  by  laying 
hold  of  the  separate  property  as  the  only  means  by  which  they  can 
be  satisfied."18 

Some  of  the  American  courts  have  recognized  and  followed  the 
doctrine  of  the  English  court,  and  hold  that  the  power  to  charge  the 
estate  with  debts  is  incident  to  the  ownership  of  the  estate ;  that 
it  need  not  be  expressly  conferred  by  the  instrument  creating  the 
estate;  and,  farther  than  this,  that  the  debt  need  not  be  for  the 
benefit  of  the  estate,  or  even  for  the  benefit  of  the  wife.  Thus  it  has 
been  held  that  separate  property  of  a  married  woman,  conferred 
upon  her  by  marriage  settlement  (and  the  rule  would  apply  to  sepa- 
rate property  conferred  in  any  other  way),  which  provides  that 
she  shall  have  the  complete  control  of  it  as  though  the  marriage 
had  never  taken  place,  and  contains  no  restraint  upon  alienation, 
causes  her  to  be  regarded  in  a  court  of  equity,  with  regard  to  such 
property,  as  a  feme  sole,  and  she  may,  by  her  agreement,  freely  en- 
tered into,  charge  it  even  for  the  payment  of  her  husband's  debts.17 

In  some  states  it  is  held  that  the  contract  must  be  for  the  benefit 
of  the  estate.  In  these  states  a  married  woman  has  no  power  to 
bind  her  separate  estate  at  all,  even  by  expressly  charging  it,  unless 
the  contract  is  for  the  benefit  of  the  estate  itself.18  In  other  states 
it  seems  to  be  the  rule  that  the  contract  must  be  either  for  the 
benefit  of  the  separate  estate  or  for  the  benefit  of  the  wife  gen- 
erally.19 

In  some  states,  as  has  been  seen,  it  is  held  that  a  married  woman 
has  no  power  to  dispose  of  her  separate  estate,  unless  that  power 
is  expressly  conferred  by  the  instrument  creating  the  estate.  So,  on 
the  same  reasoning,  it  is  there  held  that  she  cannot  charge  her  sepa- 
rate estate  by  contracts  in  relation  thereto  unless  the  power  has 
been  expressly  conferred  upon  her  in  the  creation  of  the  estate.20  In 

is  Owens  v.  Dickenson,  Craig  &  P.  48. 

IT  Bradford  v.  Green  way,  17  Ala.  797,  52  Am.  Dec.  203.  And  see  Bain  v. 
Buff's  Adm'r,  76  Va.  371. 

isWillard  v.  Eastham,  15  Gray  (Mass.)  328,  77  Am.  Dec.  366;  Heburn  v. 
Warner,  112  Mass.  271,  17  Am.  Rep.  86;  Musson  v.  Trigg,  51  Miss.  172; 
Owens  v.  Johnson,  8  Baxt.  (Tenn.)  265. 

i»  Yale  v.  Dederer,  18  N.  Y.  265,  72  Am.  Dec.  503;  Kantrowitz  v.  Prath- 
er,  31  Ind.  92,  99  'Am.  Dec.  587 ;  Wilson  v.  Jones,  46  Md.  349;  Homeopathic 
Mut.  Life  Ins.  Co.  vJ  Marshall,  32  N.  J.  Eq.  103;  Eliott  v.  Gower,  12  R.  I. 
79,  34  Ain.  Rep.  600 ;  Dale  v.  Robinson,  51  Vt.  20,  31  Am.  Rep.  669 ;  Lillard 
v.  Turner,  16  B.  Mon.  (Ky.)  374. 

20  Willard  ?.  Eastham,  15  Gray  (Mass.)  328,  77  Am.  Dec.  366;   Heburn  v. 


§§  75-77)       POWEE  TO  CHARGE  EQUITABLE  ESTATE  BY  CONTRACT      191 

no  case  can  a  married  woman  charge  her  separate  estate  by  contract 
if  she  is  restrained  from  doing  so  by  the  instrument  creating  it. 

It  must  be  borne  in  mind  that  under  this  doctrine  a  married  wo- 
man has  no  more  power  in  equity  than  she  has  at  law  to  bind  her- 
self personally  by  her  contracts,  even  where  they  are  made  in  rela- 
tion to,  and  for  the  benefit  of,  her  equitable  separate  estate.  Equity 
merely  lays  hold  of  the  estate  to  satisfy  the  debt,  and  does  not  un- 
dertake to  hold  her  personally  liable.  She  binds  the  estate  only, 
and  not  herself. 

It  is  not  every  contract  of  a  married  woman  that  is  binding  upon 
her  equitable  separate  estate,  even  if  it  is  for  the  benefit  of  the  es- 
tate. In  all  jurisdictions  it  is  held  that  the  contract  must  have  been 
made  on  the  faith  of  that  estate.21  If  a  man,  for  instance,  should 
sell  a  married  woman  goods,  not  knowing  she  had  a  separate  estate, 
but  trusting  her  personally,  he  could  not  afterwards  hold  the  estate 
liable. 

As  to  the  sufficiency  of  the  circumstances  to  show  that  the  con- 
tract sought  to  be  enforced  was  made  on  the  faith  of  the  separate 
estate,  so  as  to  constitute  a  charge  upon  it,  the  courts  are  not 
agreed,  and  the  rules  are  different  in  the  different  jurisdictions. 
According  to  the  English  doctrine  the  contract  need  not  show  by 
express  terms  that  it  was  made  on  the  credit  of  the  estate;  but  it 
is  sufficient  if  it  appears  from  all  the  surrounding  circumstances 
that  it  was  made  with  intent  to  charge  the  estate.22  And  this  rule 
has  been  substantially  adopted  by  the  courts  of  some  of  our  states.23 
It  was  said  in  an  English  case :  "In  order  to  bind  her  separate  es- 
tate by  a  general  engagement,  it  should  appear  that  the  engagement 
was  made  with  reference  to,  and  upon  the  faith  and  credit  of,  that 
estate;  and  the  question  whether  it  was  so  or  not  is  to  be  judged  of 
by  the  court  upon  all  the  circumstances  of  the  case."  24  In  some  of 

Warner,  112  Mass.  271,  17  Am.  Rep.  86;  Adams  v.  Mackey,  6  Rich.  Eq. 
(S.  C.)  75;  Musson  v.  Trigg,  51  Miss.  172;  Owens  v.  Johnson,  8  Baxt.  (Tenn.) 
265. 

21  Johnson  v.  Gallagher,  3  De  Gex,  F.  &  J.  494;  Jaques  v.  New  York  M.  E. 
Church,  17  Johns.  (N.  Y.)  548,  8  Am.  Dec.  447;    Johnson  v.  Cummins,  16  N. 
J.  Eq.  97,  84  Am.  Dec.  142. 

22  Lewin,  Trusts,  767;    Perry,  Trusts,  §  659;    Johnson  v.  Gallagher,  3  De 
Gex,  F.  &  J.  494;    Matthewman's  Case,  L.  R.  3  Eq.  781;    Shattock  v.  Shat- 
tock,  L.  R.  2  Eq.  182. 

28  Sprague  v.  Tyson,  44  Ala.  338;  De  Baun  v.  Van  Wagoner,  56  Mo.  347; 
A  very  v.  Vansickle,  35  Ohio  St.  270 ;  Harshberger's  Adm'r  v.  'Alger,  31  Grat. 
(Va.)  52 ;  Radford  v.  Carwile.  13  W.  Va.  572. 

24  Johnson  v.  Gallagher,  3  De  Gex,  F.  &  J.  494. 


192        WIFE'S  EQUITABLE  AND  STATUTORY  SEPARATE  ESTATE     (Ch.  5 

the  states  it  is  held  that  the  contract  must  expressly  purport  to 
charge  the  separate  estate.25  And  in  still  other  states  it  is  held  that 
the  contract  must  expressly  purport  to  charge  the  estate  if  it  is 
not  for  the  benefit  of  the  estate  itself,  but  for  the  benefit  of  the  wife 
generally.2* 

STATUTORY  SEPARATE  ESTATE 

78.  The  common  law,  in  so  far  as  it  affects  the  property  of  the  wife, 
has  been  greatly  modified  by  modern  statutes.  The  result 
of  these  statutes  may  be  stated  thus: 

(a)  Perhaps  in  all  the  states  the  real  estate  owned  by  a  woman 

at  the  time  of  her  marriage  remains  her  separate  property 
after  marriage. 

(b)  In  most  states  real  estate  acquired  by  her  after  marriage,  by 

devise,  descent,  or  purchase,  becomes  and  remains  her 
separate  property. 

(c)  In  some  states  real  estate  acquired  in  any  way  becomes  and 

remains  her  separate  property. 

(d)  In  most  states  the  personal  property  owned  by  a  woman  at 

the  time  of  her  marriage  remains  her  separate  property 
after  marriage. 

(e)  In  most  states  personal  property  acquired  by  her  after  mar- 

riage, by  bequest,  descent,  or  purchase,  becomes  and  re- 
mains her  separate  property. 

It  has  been  seen  in  another  chapter  that  at  common  law  the  hus- 
band acquires  certain  rights  in  his  wife's  real  estate,  and  acquires 
the  absolute  right  to  all  her  personalty  in  possession,  and  the  right 
to  reduce  her  choses  in  action  to  possession.  As  already  stated,  the 
legislatures  have  in  modern  times  enacted  laws  changing  the  com- 
mon law  to  a  greater  or  less  extent  in  the  different  states.  In  no 
state  is  the  common  law  now  in  force  to  its  full  extent.  The  stat- 
utes vary  so  much  in  the  different  states  that  we  can  only  refer 
to  them  in  a  general  way. 

zswillard  v.  Easthara,  15  Gray  (Mass.)  328,  77  Am.  Dec.  366;  Heburn 
v.  Warner,  112  Mass.  271,  17  Am.  Rep.  86;  Wilson  v.  Jones,  46  Md.  349; 
Musson  v.  Trigg,  51  Miss.  172 ;  Owens  v.  Johnson,  8  Baxt.  (Tenn.)  265. 

2*  Yale  v.  Dederer,  18  N.  Y.  265,  72  Am.  Dec.  503;  Wilson  v.  Jones,  46  Md. 
349 ;  Homeopathic  Mut.  Life  Ins.  Co.  v.  Marshall,  32  N.  J.  Eq.  103 ;  Eliott 
v.  Gower,  12  R.  I.  79,  34  Am.  Rep.  600 ;  Dale  v.  Robinson,  51  Vt  20,  31  Am. 
Rep.  669;  Lillard  v.  Turner,  16  B.  Mon.  (Ky.)  374. 


§  78)  STATUTORY  SEPARATE  ESTATE  193 

Statutes  have  been  passed  in  all  the  states  of  this  country,  per- 
haps, declaring  that  the  real  and  personal  property  owned  by  a  wo- 
man remains  her  separate  property  on  her  marriage,  and  that  all 
property,  real  or  personal,  acquired  by  her  after  marriage,  by  devise 
or  descent,  purchase  or  gift,  becomes  her  sole  and  separate  prop- 
erty.27 

In  some  states  there  are  constitutional  provisions  intended  to  se- 
cure the  property  rights  of  married  women,28  and  statutes  passed  in 
accordance  therewith  are  not  objectionable,  in  that  they  give  great- 
er protection  to  married  women  than  the  Constitution  requires.29 

The  statutes  are,  as  a  rule,  so  clearly  worded  that  there  is  no  diffi- 
culty in  determining  their  effect  in  so  far  as  they  give  the  wife  cer- 
tain property  owned  or  acquired  by  her  as  her  separate  estate.  The 
chief  difficulty  has  been  in  determining  the  powers  and  liabilities  of 
the  wife  in  respect  of  such  property. 


27  See  the  statutes  of  the  various  states.  In  some  instances  it  is  provided 
that  the  statute  shall  not  apply  to  property  acquired  by  gift  from  the  hus- 
band. See  Comp.  St.  Neb.  1905,  c.  53,  §  4290—1 ;  P.  S.  Vt.  §  3040.  For  Eng- 
lish statute,  see  Married  Women's  Property  Act  (St.  45  &  46  Viet.  c.  75  [1882]). 
Under  the  Vermont  statute  (P.  S.  §§  3037,  3040)  the  instrument  or  decree  by 
which  a  married  woman  attains  the  property  must  specify  that  it  is  to  be 
her  separate  property.  Ainger  v.  White's  Adm'x,  85  Vt.  446,  82  Atl.  666; 
Seaver  v.  Lang,  92  Vt.  501,  104  Atl.  877. 

A  married  woman  has  the  same  status  as  her  husband  as  to  the  right  to 
acquire  property.  Farmers'  State  Bank  of  Ada  v.  Keen  (Okl.)  167  Pac.  207; 
Caylor  Lumber  Co.  v.  Mays  (Okl.)  174  Pac.  521.  Under  the  New  Jersey  act 
of  March  25,  1852  (P.  L.  p.  407),  a  married  woman  took  the  legal  title  to 
property  conveyed  or  devised  to  her,  and  not  simply  the  equitable  title.  De 
Baun's  Ex'x  v.  De  Baun,  119  Va.  85,  89  S.  B.  239.  Under  the  Emancipation 
Act  of  1913,  a  husband  had  no  interest  in  a  lot  owned  by  the  wife  at  time 
of  her  marriage,  and  the  entire  title  thereto  remained  in  the  wife  and  might 
be  levied  upon  and  sold  by  her  creditor  as  her  property.  Henderson  Grocery 
Go.  v.  Johnson,  141  Tenn.  127,  207  S.  W.  723.  Under  the  Constitution  and 
(laws  of  South  Carolina,  the  real  and  personal  property  of  a  married  woman, 
whether  held  by  her  at  the  time  of  her  marriage  or  accruing  to  her  there- 
after by  inheritance  or  otherwise,  becomes  her  separate  property,  and  she 
may  dispose  of  it  to  the  same  extent  as  if  she  were  unmarried ;  the  husband 
having  no  marital  rights  such  as  existed  at  common  law,  but  being  under  the 
same  obligation  as  at  common  law  to  support  and  maintain  the  wife  and 
family.  In  re  Carpenter  (D.  C.)  179  Fed.  743. 

zs  Const.  Ark.  1874,  art.  9,  §§  7,  8 ;  Const.  S.  C.  1895,  art.  17,  §  9 ;  Const. 
W.  Va.  art.  6,  §  49. 

2»  Pelzer  v.  Campbell,  15  S.  C.  581,  40  Am.  Rep.  705. 

TIFF.P.&  D.REL.(3o  ED.)— 13 


194        WIFE'S  EQUITABLE  AND  STATUTORY  SEPARATE  ESTATE     (Ch.  5 

Construction — Effect  in  General 

The  general  rule  for  the  construction  of  these  statutes  is  that  they 
are  to  be  so  construed  as  to  give  full  effect  to  their  terms ; 80  but, 
since  they  are  in  derogation  of  the  common  law,  they  are  not  to  be 
extended  further.  They  do  not  impliedly  abrogate  the  common 
law  beyond  their  terms.31  Thus,  where  a  statute  provided  that  the 
wife  should  hold  her  separate  estate  to  her  sole  and  separate  use, 
and  that  it  should  not  be  subject  to  the  disposal  of  hef  husband,  nor 
be  liable  for  his  debts,  it  was  held  that  the  husband  was  neverthe- 
less entitled  to  an  estate  by  the  curtesy,  as  the  statute  could  have 
full  effect  without  impairing  his  right  thereto.82  Nor  will  such  an 
enactment  deprive  the  husband  of  the  right  to  administer  on  his 
wife's  estate.88 

The  general  effect  of  the  statutes  is  to  abrogate  the  husband's  ti- 
tle to  the  wife's  property,  secured  to  him  by  the  common  law,  and 
to  vest  in  her  both  the  legal  and  the  equitable  title,8*  and  to  secure 
to  her  the  same  control  and  power  of  management  she  would  have 
if  sole,  except  in  so  far  as  her  right  to  charge  the  property  for  debts 
is  restricted.85 

Statutory  and  Equitable  Separate  Estate  Distinguished 

Statutes  creating  a  statutory  separate  estate  do  not  necessarily 
destroy  the  wife's  right  to  a  separate  estate  in  equity;  but  an 
equitable  separate  estate  may  be  created  and  may  exist  at  the  same 
time  as  the  statutory  separate  estate.86  The  two  estates  are,  how- 

«o  Kriz  v.  Peege,  119  Wis.  105,  95  N.  W.  108. 

si  Post,  p.  197. 

32  Johnson  v.  Cummins,  16  N.  J.  Eq.  97,  84  Am.  Dec.  142;  Cole  v.  Van 
Riper,  44  111.  58.  Contra,  Billings  v.  Baker,  28  Barb.  (N.  Y.)  348.  And  see 
King  v.  Davis  (C.  C.)  137  Fed.  222. 

s  s  Johnson  v.  Cummins,  16  N.  J.  Eq.  97,  84  Am.  Dec.  142;  Shumway  v. 
Cooper,  16  Barb.  (N.  Y.)  556;  Vallance  v.  Bausch,  28  Barb.  (N.  Y.)  633;  Ran- 
som v.  Nichols.  22  N.  Y.  110. 

a*  Gunn  v.  Hardy,  107  Ala.  609,  18  South.  284.  So  long  as  the  wife  keeps 
her  property  separate  from  that  of  her  husband,  it  is  her  separate  property. 
In  re  Hill  (D.  C.)  190  Fed.  390.  The  common-law  rights  of  the  husband  are 
during  the  life  of  the  wife  abrogated.  McGuire  v.  Cook,  98  Ark.  118,  135  S. 
W.  840,  Ann.  Cas.  1912D,  776.  And  the  wife  holds  her  lands  as  free  from 
the  common-law  rights  of  the  husband  as  if  she  were  unmarried.  Deutsch 
v.  Rohlfing,  22  Colo.  App.  543,  126  Pac.  1123.  Since  a  married  woman  may 
hold  real  estate  in  her  own  right,  if  the  real  estate  be  a  home  place  in  which 
she  resides,  the  presence  of  her  husband  does  not  detract  from  her  full  pos- 
session and  ownership.  Graham  v.  Graham,  202  Ala.  56,  79  South.  450. 

as  Wood  v.  Wood,  83  N.  Y.  575.     See  post,  p.  201. 

se  Richardson  y.  Stodder,  100  Mass.  528;    Musson  v.  Trigg,  51  Miss.  172; 


§  78)  STATUTORY  SEPARATE  ESTATE  195 

ever,  essentially  different.  Under  the  statute  a  married  woman 
takes  the  legal  title  to  both  real  and  personal  property,  wholly  ex- 
empt from  the  marital  rights  of  the  husband,  and  free  from  his  con- 
trol or  interference.  The  estate  so  derived  is  no  longer  a  mere  crea- 
ture of  equity,  dependent  on  its  power  alone  for  protection  and  its 
principles  for  the  rights  of  enjoyment;  but,  in  all  cases  where  by 
the  nature  of  the  conveyance,  gift,  devise,  or  bequest  an  absolute 
legal  title  would  be  vested  in  a  feme  sole,  the  same  title  will,  by 
virtue  of  the  statute,  be  vested  in  a  feme  covert,  and  the  property 
will  be  held,  owned,  possessed,  and  enjoyed  by  her  the  same  as 
though  she  were  unmarried.  Her  rights  and  the  remedies  incident 
thereto  are  legal,  as  distinguished  from  the  equitable  rights  and 
remedies  incident  to  the  equitable  separate  estate.37 
Constitutionality  of  Statutes — Retrospective  Construction 

In  most  states  there  are  constitutional  provisions  prohibiting  the 
Legislature  from  passing  retrospective  laws.  "Every  statute  which 
takes  away  or  impairs  vested  rights  acquired  under  existing  laws, 
or  creates  a  new  obligation,  or  imposes  a  new  duty,  or  attaches  a 
new  disability  in  relation  to  transactions  or  considerations  already 
past,  must  be  deemed  retrospective,"  and  therefore  in  violation  of 

Holliday  v.  Hively,  198  Pa.  335,  47  Atl.  988.  The  Virginia  statute  (Code  1904, 
§  2294)  provides  specifically  that  separate  equitable  estates  are  not  abolished. 
Acts  1913,  c.  26,  removing  the  disabilities  of  coverture  in  respect  of  married 
women,  does  not  affect  the  creation  £>r  operation  of  equitable  separate  es- 
tates. Travis  v.  Sitz,  135  Tenn.  156,  185  S.  W.  1075,  L.  R.  A.  1917A,  671.  A 
husband  executed  a  deed  of  land  to  the  wife,  who  on  the  same  day  con- 
veyed the  land  to  a  trustee  for  the  husband's  heirs.  The  husband  died  prior 
to  the  Married  Woman's  Act  of  February  28,  1887  (Acts  1886-87,  p.  80).  Heidi, 
that  the  wife  acquired  only  the  equitable  title,  and  the  legal  title  descended 
to  the  husband's  heirs  at  his  death,  and  the  Married  Woman's  Act  did  not  de- 
vest  the  heirs  of  such  title,  and  a  will  subsequently  made  by  the  wife  was 
ineffectual.  Neville  v.  Cheshire,  163  Ala.  390,  50  South.  1005. 

37  Cookson  v.  Toole,  59  111.  515 ;  Williams  v.  Hugunin,  69  111.  214,  18  Am. 
Rep.  607;  Conway  v.  Smith,  13  Wis.  140;  Musson  v.  Trigg,  51  Miss.  172; 
Frierson  v.  Williams,  57  Miss.  451.  Compare  Colvin  v.  Currier,  22  Barb.  (N. 
Y.)  371,  and  Wood  v.  Wood,  83  N.  Y.  575.  Whether  a  separate  estate  is  an 
equitable  separate  estate  or  a  statutory  separate  estate  must  be  determined 
from  the  language  and  provisions  of  the  instrument  creating  it.  If  the  in- 
strument grants  powers  or  imposes  restrictions  not  granted  or  imposed  by 
the  statute,  but  which  are  yet  consistent  with  the  rules  and  principles  of 
equity,  the  estate  will  be  construed  to  be  an  equitable,  and  not  a  statutory, 
separate  estate.  Jones  v.  Jones'  Ex'r,  96  Va.  749,  32  S.  E.  463.  See,  also, 
Short  v.  Battle,  52  Ala.  456,  holding  that  if  the  intent  is  ambiguous,  as  when 
there  is  a  mere  conveyance,  the  statute  steps  in  and  makes  the  estate  a  stat- 
utory separate  estate. 


196        WIFE'S  EQUITABLE  AND  STATUTORY  SEPARATE  ESTATE     (Ch.  5 

such  constitutional  provisions.88  Under  such  a  provision,  or  one 
havirtg  a  similar  prohibitory  effect,  the  Legislature  cannot  take 
away  or  impair  rights  which  have  already  vested  in  the  husband  by 
virtue  of  the  marriage.  If  a  husband  has  already  acquired  by  virtue 
of  the  marriage  and  the  existing  law  a. vested  right  in  property 
owned  by  his  wife  either  at  the  time  of  the  marriage  or  afterwards, 
whether  it  be  real  or  personal,  such  right  cannot  constitutionally 
be  taken  from  him  by  legislative  enactment.88  But  there  is  noth- 
ing in  such  constitutional  prohibitions  to  prevent  the  Legislature 
from  defeating  mere  expectancies  where  no  rights  have  vested  in 
him.  There  is  nothing  unconstitutional  in  a  statute  giving  married 
women  the  sole  right  to  property  that  may  afterwards  be  acquired 
by  them,  whether  real  or  personal,  or  to  the  future  income  or  profits 
of  land  owned  by  them  at  the  time  the  statute  is  enacted.  Such  a 
statute  neither  defeats  nor  impairs  any  vested  right  either  of  the 
husband  or  of  his  creditors.40 

38  Society  for  the  Propagation  of  the  Gospel  v.  Wheeler,  2  Gall.  105,  Fed. 
Cas.  No.  13,156 ;  Leete  v.  State  Bank  of  St.  Louis,  115  Mo.  184,  21  S.  W. 
788. 

SB  Cranston  v.  Cranston,  24  R,  I.  297,  53  Atl.  44;  Vanata  v.  Johnson,  170 
Mo.  269,  70  S.  W.  687 ;  Mayo  v.  Bank  of  Gleason,  140  Tenn.  423,  205  S.  W. 
125;  Bennett  v.  Hutchens,  133  Tenn.  65,  179  S.  W.  629;  Tucker  v.  Tucker's 
Adm'r,  165  Ky.  306,  176  S.  W.  1173;  Farrell  v.  Patterson,  43  111.  52;  Du- 
bois  v.  Jackson,  49  111.  49;  Almond  v.  Bonnell,  76  111.  537;  McNeer  v.  Mc- 
Neer, 142  111.  388,  32  N.  E.  681,  19  L.  R.  A.  256;  Arnold  v.  Limeburger,  122 
Ga.  72,  49  S.  E.  812;  Hetzel  v.  Lincoln,  216  Pa.  60,  64  Atl.  866;  Coombs  v. 
Read,  16  Gray  (Mass.)  271 ;  Dunn  v.  Sargent,  101  Mass.  336 ;  Carter  v.  Car- 
ter, 14  Smedes  &  ML  (Miss.)  59;  Eldridge  v.  Preble,  34  Me.  148;  Erwin  v. 
Puryear,  50  Ark.  356,  7  S.  W.  449;  Wythe  v.  Smith,  4  Sawy.  17,  Fed.  Cas. 
No.  18,122.  And  see  Appeal  of  Freeman,  68  Conn.  533,  37  Atl.  420,  37  L.  R, 
A.  452,  57  Am.  St.  Rep.  112. 

<o  See  Baker's  Ex'rs  v.  Kilgore,  145  U.  S.  487,  12  Sup.  Ct.  943,  36  L.  Ed. 
786;  Allen  v.  Hanks,  136  U.  S.  300,  10  Sup.  Ct.  961,  34  L.  Ed.  414;  Holliday 
v.  McMillan,  79  N.  C.  315,  318;  Rutledge  v.  Rutledge,  177  Mo.  App.  469,  119 
S.  W.  489;  Rezabek  v.  Rezabek,  196  Mo.  App.  673,  192  S.  W.  107;  Quigley 
v.  Graham,  18  Ohio  St.  42 ;  McNeer  v.  McNeer,  142  111.  388,  32  N.  E.  681,  19 
L.  R.  A.  256;  Buchanan  v.  Lee,  69  Ind.  117;  Sperry  v.  Haslam,  57  Ga.  412; 
Niles  v.  Hall,  64  Vt.  453,  25  Atl.  479.  It  has  been  held  that  a  husband's  In- 
terest as  tenant  by  the  curtesy  initiate,  at  common  law,  in  land  owned  by 
his  wife,  is  not  a  vested  right,  and  may  be  interrupted  by  legislation  before 
it  becomes  consummate  by  the  death  of  the  wife.  Alexander  v.  Alexander,  85 
Va.  353,  7  S.  W.  335,  1  L.  R.  A.  125.  See  Hill  v.  Chambers,  30  Mich.  422.  But 
the  better  opinion  is  to  the  contrary.  See  McNeer  v.  McNeer,  142  111.  388, 
32  N.  E.  681,  19  L.  R.  A.  256;  Jackson  v.  Jackson,  144  111.  274,  33  N.  E.  51,  36 
Am.  St.  Rep.  427 ;  Rose  v.  Sanderson,  38  111.  247.  See,  as  to  the  effect  of  the 
separate  property  acts  on  the  husband's  interest  in  his  wife's  lands.  Prall  v. 
Smith,  31  N.  J.  Law,  244 ;  Dayton  v.  Dusenbury,  25  N.  J.  Eq.  110 ;  Eldridge 


§  78)  STATUTORY  SEPARATE  ESTATE  197 

Statutes  taking  from  the  husband  rights  which  are  given  him  at 
common  law  in  his  wife's  property  will  not  be  construed  as  having 
a  retroactive  effect,  even  where  retroactive  laws  are  not  prohibited 
by  the  Constitution  of  the  particular  state,  unless  the  intention  of 
the  Legislature  that  they  shall  have  such  effect  is  clearly  expressed, 
and  the  language  employed  admits  of  no  other  construction.  That 
intention  is  not  to  be  assumed  by  the  mere  fact  that  the  language  of 
the  statute  is  general,  and  might  include  past  as  well  as  future 
transactions.41 

Constitutional  prohibitions  against  laws  impairing  the  obligation 
of  contracts  prevent  the  Legislatures  from  passing  law's  impairing 
the  obligation  of  contracts  made  by  a  husband  concerning  property 
of  his  wife,  which  he  had  a  right  to  make  by  virtue  of  the  marriage 
and  under  existing  laws ;  but  marriage  is  not  a  contract  within  the 


v.  Preble,  34  Me.  148;  Burson's  Appeal,  22  Pa.  164;  Bouknight  v.  Epting, 
11  S.  C.  71.  The  Legislature,  however,  may  clearly  defeat,  by  a  statute,  any 
right  to  curtesy  which  he  would  otherwise  have  in  land  which  may  be  ac- 
quired by  the  wife  after  the  adoption  of  the  statute.  Baker's  Ex'rs  v.  Kil- 
gore,  supra ;  Allen  v.  Hanks,  supra.  And  it  may  defeat  a  husband's  expect- 
ancy of  a  tenancy  by  the  curtesy ;  that  is,  it  may  abolish  curtesy,  or  modify 
the  existing  law,  before  the  husband's  interest  becomes  initiate.  Oooley, 
Const.  Lim.  440;  Wyatt  v.  Smith,  25  W.  Va.  813;  McNeer  v.  McNeer,  142 
111.  388,  32  N.  E.  681,  19  L.  R.  A.  256.  See  Hill  v.  Chambers,  30  Mich.  422. 
It  cannot  defeat  a  vested  estate  by  the  entirety.  Almond  v.  Bonnell,  76  111. 
536.  It  has  also  been  held  by  some  courts  that  a  husband's  right  to  reduce 
his  wife's  choses  in  action  to  possession  is  not  a  vested  right,  even  as  to  ex- 
isting choses  in  action  not  reduced,  and  that  it  may  be  interrupted  by  leg- 
islation. Alexander  v.  Alexander,  85  Va.  353,  7  S.  E.  335,  1  L.  R.  A.  125; 
Clarke  v.  McCreary,  12  Smedes  &  M.  (Miss.)  347;  Percy  v.  Cockrill,  53  Fed. 
872,  881,  4  C.  C.  A.  73 ;  Goodyear  v.  Rumbaugh,  13  Pa.  480;  Mellinger's 
Adm'r  v.  Bausman's  Trustee,  45  Pa.  522,  529;  Dilley  v.  Henry's  Ex'r,  25  N. 
J.  Law,  302.  But  the  better  opinion  is  to  the  contrary.  Dunn  v.  Sargent, 
101  Mass.  336;  Westervelt  v.  Gregg,  12  N.  Y.  202,  62  Am.  Dec.  160;  Norrfs 
v.  Beyea,  13  N.  Y.  273,  288;  Ryder  v.  Hulse,  24  N.  Y.  372;  Leete  v.  State 
Bank,  115  Mo.  184,  21  S.  W.  788;  Sterns  v.  Weathers,  30  Ala.  712;  Kidd  v. 
Montague,  19  Ala.  619;  Anderson  v.  Anderson,  1  Ala.  Sel.  Gas.  612.  Acts 
34th  Leg.  c.  54,  §  1  (Vernon's  Sayles'  Ann.  Civ.  St.  Supp.  1918,  art.  4621a), 
providing  that  all  property  or  moneys  received  as  compensation  for  personal 
injuries  sustained  by  wife  shall  be  her  separate  property,  does  not  affect 
actions  filed  prior  to  passage  thereof.  Houston  Belt  &  Terminal  Ry.  Co.  v. 
Scheppelman  (Tex.  Civ.  App.)  203  S.  W.  167. 

4i  See  Stilphen  v.  Stilphen,  65  N.  H.  126,  23  Atl.  79;  Leete  v.  State  Bank 
of  St.  Louis,  115  Mo.  184,  21  S.  W.  788,  and  authorities  there  cited.  See, 
also,  the  cases  cited  in  note  40,  supra. 


198        WIFE'S  EQUITABLE  AND  STATUTORY  SEPARATE  ESTATE     (Ch.  5 

meaning  of  such  provisions,  and  they  cannot  be  set  up  to  defeat 
legislation  taking  from  a  husband  rights  in  his  wife's  property.42 
What  Law  Governs 

If  the  husband,  by  virtue  of  his  marital  right  under  the  common 
law,  becomes  vested  with  title  to  his  wife's  personalty,  the  subse- 
quent removal  of  the  parties  to  a  state  in  which  the  law  declares 
that  property  owned  or  acquired  by  a  married  woman  is  her  sepa- 
rate property  will  not  divest  him  of  his  title.43  Conversely,  if  a 
married  woman  acquires  a  separate  property  in  personalty  under 
the  statute  of  the  state  of  residence,  the  subsequent  removal  of  the 
parties  to  a  state  where  the  common  law  prevails  will  not  divest  her 
of  her  title  and  vest  it  in  the  husband  by  virtue  of  his  marital 
rights.44 

What  Constitutes  Wife's  Separate  Property 

As  was  stated  above,  the  statutes  generally  provide  that  the 
property  owned  by  a  woman  at  the  time  of  her  marriage,  or  there- 
after acquired  by  her  in  any  legal  manner  is  her  separate  proper- 
ty.45 Under  these  statutes  it  has  been  held  that  a  married  woman 
has  a  separate  estate  in  property  acquired  by  gift,46  purchased  on 

«  MAYNARD  v.  HILL,  125  U.  S.  190,  8  Sup.  Ct.  723,  31  L.  Ed.  654,  Cooley 
Cas.  Persons  and  Domestic  Eolations.  1;  ante,  p.  3,  and  cases  there  citert. 

43  Ellington  v.  Harris,  127  Ga.  85,  56  S.  E.  134,  119  Am.   St  Rep.  320; 
Meyer  v.  McCabe,  73  Mo.  236;    Birmingham  Waterworks  Co.  v.  Hume,  121 
Ala.  168,  25  South.  806,  77  Am.  St.  Rep.  43. 

44  Rice  v.  Shipley,  159  Mo.  399,  60  S.  W.  740. 

45  See  ante,  p.  193. 

*8  Salisbury  v.  Spofford,  22  Idaho,  393,  126  Pac.  400;  Chora  v.  Chorn's 
Adm'r,  98  Ky.  627,  33  S.  W.  1107 ;  Hess  v.  Brown,  111  Pa.  124,  2  Atl.  416 ; 
Cropper  v.  Bowles,  150  Ky.  393,  150  S.  W.  380 ;  Kinkaid  v.  Lee,  54  Tex.  Civ. 
App.  622,  119  S.  W.  342 ;  O'Brien  v.  McSherry,  222  Mass.  147,  109  N.  E.  904. 
Where  a  wife  conveyed  property  received  as  a  gift  to  a  holding  corporation 
formed  by  members  of  the  family,  the  stock  received  In  exchange  therefor 
was  acquired  by  gift  and  was  her  separate  property.  Smith  v.  Weed,  75 
Wash.  452,  134  Pac.  1070.  A  husband,  who  executed  a  note  to  his  wife  for 
money  received  by  her  as  heir  of  her  mother,  thereby  made  the  note  the  wife's 
separate  property,  and  thereby  deprived  himself  of  any  right  to,  or  interest 
in,  either  the  money  or  the  note,  though  it  did  not  in  terms  recite  that  it  was 
for  the  wife's  separate  use.  Bennett  v.  Bennett's  Adm'r,  134  Ky.  444,  120  S. 
W.  372.  In  view  of  Rem.  Code  1915,  §§  5919,  5925,  8766,  8771,  where  a  hus- 
band procures  a  deed  in  wife's  name,  and  so  conducts  himself  with  reference 
thereto,  as  to  evidence  no  claim  or  interest  therein,  the  property  will  consti- 
tute separate  estate  of  wife.  Lanigan  v.  Miles,  102  Wash.  82,  172  Pac.  894. 
Prior  to  the  enactment  of  the  Married  Woman's  Act  (Acts  1866,  p.  146), 
property  given  a  wife  during  coverture  vested  in  her  husband,  unless  the 
gift  used  words  indicating  a  wish  for  personal  enjoyment  by  the  wife.  Ends- 
ley  v.  Taylor,  143  Ga.  607,  85  S.  E.  852. 


§  78)  STATUTORY  SEPARATE  ESTATE  199 

her  own  credit,47  or  with  her  own  money,48  or  earnings,49  and  it 
does  not  affect  her  rights  that  her  husband  acted  as  her  agent,50  or 
took  title  in  his  own  name,51  or  even  that  he  paid  a  portion  of  the 
purchase  money,  if  the  intent  was  that  the  property  should  be  her 
separate  property.52  Nor  does  the  fact  that  the  husband  rendered 

*7Merrell  v.  Purdy,  129  Wis.  331,  109  N.  W.  82;  Kriz  v.  Peege,  119  Wis. 
105,  95  N.  W.  108 ;  Citizens'  Loan  &  Trust  Co.  v.  Witte,  116  Wis.  60,  92  N. 
W.  443;  Hibernian  Sav.  Inst.  v.  Luhn,  34  S.  O.  175,  13  S.  B.  357;  United 
States  Fidelity  &  Guaranty  Co.  v.  Lee,  58  Wash.  16,  107  Pae.  870 ;  Wilder  v. 
Richie,  117  Mass.  382;  SIDWAY  v.  NICHOL,  62  Ark.  146,  34  S.  W.  529, 
Cooley  Cas.  Persons  and  Domestic  Relations,  98 ;  Reeves  v.  McNeill,  127  Ala. 
175,  28  South. -623  ;  Conkling  v.  Levie,  66  Neb.  132,  94  N.  W.  988  (second  case)  ; 
Hibbard  v.  Heckart,  88  Mo.  App.  544.  And  it  does  not  affect  her  rights  that 
she  had  no  prior  separate  estate  to  form  a  basis  of  credit.  Trapnell  v. 
Conklyn,  37  W.  Va.  242,  16  S.  E.  570,  38  Am.  St.  Rep.  30 ;  Messer  v.  Smyth, 
58  N.  H.  298;  Kriz  v.  Peege,  119  Wis.  105,  95  N.  W.  108.  Property  pur- 
chased by  married  woman  on  her  individual  credit,  without  applying  on  the 
price  property  or  proceeds  of  property  derived  from  her  husband,  is  not 
liable  for  his  debts.  Hoover  v.  Carver,  135  Minn.  105,  160  N.  W.  249.  Credi- 
tors of  a  husband  cannot  reach  property,  which  was  purchased  by  the  wife 
with  money  borrowed  on  her  personal  credit,  and  which  was  repaid  out  of 
her  separate  estate.  Morris  v.  Waring,  22  N.  M.  175,  159  Pac.  1002. 

48  Gebhart  v.  Gebhart  (Tex.  Civ.  App.)  61  S.  W.  964 ;  Oaks  v.  West  (Tex. 
Civ.  App.)  64  S.  W.  1033 ;  Fox  v.  Tyrone,  104  Miss.  44,  61  South.  5 ;  Clark  v. 
Baker,  76  Wash.  110,  135  Pac.  1025;  Marshall  Field  &  Co.  v.  McFarlane 
(Iowa)  84  N.  W.  1030.  A  wife  acquired  land  as  her  separate  estate  if  the 
consideration  used  in  paying  for  the  property  was  her  separate  estate. 
Johnson  v.  Johnson  (Tex.  Civ.  App.)  207  S.  W.  202.  Where  property  was 
paid  for  by  husband's  checks,  it  is  nevertheless  the  wife's  property,  if  thje 
actual  purchase  money  was  funds  of  the  wife  previously  given  to  him.  Con- 
ron  v.  Cauchois,  242  Fed.  909,  155  C.  C.  A.  497. 

4»  Green  v.  Forney,  134  Iowa,  316,  111  N.  W.  976;  Rath  v.  Rankins,  33 
S.  W.  832,  17  Ky.  Law  Rep.  1120;  Dobbins  v.  Dexter  Horton  &  Co.,  62  Wash. 
423,  113  Pac.  1088 ;  Larson  v.  Larson,  15  Cal.  App.  531,  115  Pac.  340 ;  Kin- 
sey  v.  Feller,  64  N.  J.  Eq.  367,  51  Atl.  485. 

BO  Reeves  v.  McNeill,  127  Ala.  175,  28  South.  623. 

si  Oaks  v.  West  (Tex.  Civ.  App.)  64  S.  W.  1033;  Ligon  v.  Wharton  (Tex. 
Civ.  App.)  120  S.  W.  930.  See,  also,  Adoue  v.  Spencer,  62  N.  Jl.  Eq.  782,  49 
Atl.  10,  56  L.  R.  A.  817,  90  Am.  St.  Rep.  484,  holding  that  the  fact  that  the 
husband  has  taken  possession  of  the  wife's  separate  estate  does  not  raise  a 
presumption  of  a  gift  to  him,  and  that  he  must  account.  Shares  of  stock 
purchased  by  husband  with  funds  in  his  hands  belonging  to  his  wife  remain 
wife's  sole  property,  although  shares  were  taken  in  the  name  of  both  hus- 
band and  wife.  Gooch  v.  Weldon  Bank  &  Trust  Co.,  176  N.  C.  213,  97  S.  E. 
53.  A  husband,  acquiring  legal  title  to  his  wife's  separate  realty,  is  deemed 
to  hold  it  in  trust  for  her,  without  direct  evidence  that  she  intended  a  gift 
of  it  to  him.  Farmers'  State  Bank  of  Ada  v.  Keen  (Okl.)  167  Pac.  207. 

52  Gebhart  v.  Gebhart  (Tex.  Civ.  App.)  61  S.  W.  964;  Corbett  v.  Sloan,  52 
Wash.  1,  99  Pac.  1025;  Patterson  v.  Patterson,  197  Mass.  112,  88  N.  E.  364. 
See,  also,  Dyer  v.  Pierce  (Tex.  Civ.  App.)  60  S.  W.  441.  Where  a  married 


200        WIFE'S  EQUITABLE  AND  STATUTORY  SEPARATE  ESTATE     (Ch.  5 

services  in  connection  with  the  property  render  it  less  her  separate 
property  or  give  his  creditors  any  claim  thereon.58  So,  too,  the 
increase  of  or  income  from  her  separate  estate  is  her  separate 
property.64 

In  many  states  her  earnings  in  activities  not  connected  with  her 
household  duties,5'  and  in  some  damages  for  torts  committed 
against  her,58  are  her  separate  property. 

woman's  money  is  invested  in  land  in  her  husband's  name,  she  owns,  in  her 
separate  right,  a  part  of  the  land  proportionate  to  the  amount  of  her  funds 
invested  therein.  Kingman-Texas  Implement  Co.  v.  Herring  Nat  Bank  (Tex. 
Civ.  App.)  153  S.  W.  394. 

B s Donovan  v.  Olson,  47  Wash.  441,  92  Pac.  276;  Green  v.  Forney,  134 
Iowa,  316,  111  N.  W.  976;  Smith's  Ex'r  v.  Johns,  154  Ky.  274,  157  S.  W. 
21;  Fink  v.  McCue,  123  Mo.  App.  313,  100  S.  W.  549;  Hibbard,  Spencer, 
Barlett  &  Co.  v.  Heckart,  88  Mo.  App.  544 ;  Trapnell  v.  Conklyn,  37  W.  Va.  242, 
16  S.  E.  570,  38  Am.  St.  Rep.  30.  See,  also,  Carson  v.  Carson,  204  Pa.  466,  54 
Atl.  348.  Improvements  placed  on  the  wife's  separate  real  estate  by  the  hus- 
band are  her  property.  Shaw  v.  Bernal,  163  Cal.  262,  124  Pac.  1012;  Hood 
v.  Hood,  83  N.  J.  Eq.  695,  93  Atl.  797;  Kearney  v.  Vann,  154  N.  C.  311,  70 
S.  E.  747,  Ann.  Cas.  1912A,  1189 ;  Holman  v.  Hohnan  (Mo.)  183  S.  W.  623. 

o*  Thorn  v.  Anderson,  7  Idaho,  421,  63  Pac.  592;  Henderson  Grocery  Co. 
v.  Johnson,  141  Tenn.  127,  207  S.  W.  723;  Maxwell  v.  Jurney,  238  Fed.  566, 
151  C.  C.  A.  502;  Carle  v.  Heller,  18  Cal.  App.  577,  123  Pac.  815;  Carson  v. 
Carson,  204  Pa.  466,  54  Atl.  348.  Profits  of  wife's  business,  though  derived 
through  activities  of  husband,  belong  to  her.  Bourgeois  v.  Edwards  (N.  J. 
Ch.)  104  Atl.  447.  Increase  in  the  value  of  the  wife's  property  by  reason  of. 
the  good  management  of  the  husband  cannot  be  reached  by  his  creditors. 
Martin  v.  Banks,  89  Ark.  77,  115  S.  W.  928;  Green  v.  Forney,  134  Iowa, 
316,  111  N.  W.  976;  Wasem  v.  Raben,  45  Ind.  App.  221,  90  N.  E.  636.  But 
see  Patton's  Ex'r  v.  Smith,  130  Ky.  819,  114  S.  W.  315,  23  L.  R.  A.  (N.  S.) 
1124. 

6BNUDING  v.  URICH,  169  Pa.  289,  32  Atl.  409,  Cooley  Cas.  Persons  and 
Domestic  Relations,  61;  Turner  v.  Davenport,  63  N.  J.  Eq.  288,  49  Atl. 
463;  Larkin  v.  Woosley,  109  Ala.  258,  19  South.  520;  Vincent  v.  Ireland. 
2  Pennewill  (Del.)  580,  49  Atl.  172;  Healey  v.  P.  Ballantine  &  Sons,  66 
N.  J.  Daw,  339,  49  Atl.  511;  Furth  v.  March,  101  Mo.  App.  329,  74  S.  W. 
147;  Roberts  v.  Haines,  112  Ga.  842,  38  S.  E.  109;  Hamilton  v.  Hamilton's 
Estate,  26  Ind.  App.  114,  59  N.  E.  344;  Moore  v.  Crandall,  205  Fed.  689, 
124  C.  C.  A.  11;  Briggs  v.  Sanford,  219  Mass.  572,  107  N.  E.  436;  Dr.  S. 
S.  Still  College  &  Infirmary  of  Osteopathy  v.  Morris,  93  Neb.  32S,  140  X.  W. 
272;  Booth  v.  Backus,  182  Iowa,  1319,  166  N.  W.  695;  Foy  v.  Pacific  Pow- 
er &  Light  Co.,  105  Wash.  525,  178  Pac.  452 ;  Perry  v.  Blumenthal,  119  App. 

BO  BLAECHINSKA  v.  HOWARD  MISSION  &  HOME  FOR  LITTLE  WAN 
DERERS,  130  N.  Y.  497,  29  N.  E.  755,  15  L.  R.  A.  215,  Cooley  Cas.  Persons  and 
Domestic  Relations,  57 ;  Healey  v.  P.  Ballantine  &  Sons,  66  N.  J.  Law,  339,  49 
Atl.  511.  See,  also,  Harmon  v.  Old  Colony  R.  Co.,  165  Mass.  100,  42  N.  E.  505, 
30  L.  R.  A.  658,  52  Am.  St.  Rep.  499 ;  Harris  v.  Webster,  58  N.  H.  481 ;  Hey  v. 
Prime,  197  Mass.  474,  84  N.  E.  141,  17  L.  R.  A.  (N.  S.)  570;  Western  Union 
Tel.  Co.  v.  Rowe,  44  Tex.  Civ.  App.  84,  98  S.  W.  228. 


§  78)  STATUTORY  SEPARATE  ESTATE  201 

\ 

When  property  is  conveyed  to  husband  and  wife  jointly,  they 
take,  as  we  have  seen,  as  tenants  by  the  entirety;  that  is,  neither 
of  them  takes  an  undivided  share  separately  from  the  other,  but 
each  has  an  interest  in  the  whole,  and  on  the  death  of  either  the 
property  belongs  to  the  other.  Neither  can  defeat  the  rights  of  the 
other  as  survivor.67  It  has  been  held,  therefore,  that  the  wife  has 
not  such  an  interest  in  such  property  that  it  can  be  called  her  sep- 
arate property  within  the  meaning  of  the  separate  property  acts.58 

Management  and  Control  of  Wife's  Separate  Property 

Though  in. some  states  the  statute  provides  that  the  management 
and  control  of  the  wife's  separate  property  shall  be  vested  in  the 
husband,59  in  the  absence  of  such  a  provision  it  is  generally  field 

Div.'  663,  104  N.  Y.  Supp.  127.  Since  the  act  of  1869  (Laws  1869,  p.  255)  the 
earnings  of  a  wife  realized  from  keeping  boarders  with  the  consent  of  her 
husband  will  be  considered  her  own  personal  property,  and,  as  a  general  rule, 
protected  from  subsequent  creditors  of  her  husband.  Arthur  Lehman  &  Co. 
V.  Slat,  208  111.  App.  39.  But  see  In  re  Shaw's  Estate,  201  Mich.  574,  167 
N.  W.  885,  holding  that,  where  wife  living  with  husband  furnishes  board 
and  room  to  an  outsider,  the  wife  has  no  personal  right  to  recover  there- 
for in  absence  of  assignment  by  husband.  Comp.  Laws  N.  M.  1884,  §  1087 
(Comp.  Laws  1897,  §  1509),  simply  exempts  earnings  of  wife  from  liability  for 
debts  of  husband,  and  does  not  make  them  her  separate  property.  Albright 
v.  Albright,  21  N.  M.  606,  157  Pac.  662,  Ann.  Cas.  1918E,  5(42. 

6  7 Ante,  p.  146,  "Estate  by  Entirety." 

58  Speier  v.  Opfer,  73  Mich.  35,  40  N.  W.  909,  2  L.  R.  A.  345,  16  Am.  St. 
Rep.  556;  Curtis  v.  Crowe,  74  Mich.  99,  41  N.  W.  876.  But  see  Dreutzer  v. 
Lawrence,  58  Wis.  594,  17  N.  W.  423,  and  FROST  v.  FROST,  200  Mo.  474,  98 
S.  W.  527,  118  Am.  St.  Rep.  689,  Cooley  Cas.  Persons  and  Domestic  Rela- 
tions, 74. 

6»  Sayles'  Ann.  Civ.  St.  Tex.  1897,  art.  2967;  Gen.  St.  Fla.  1906,  §  2589; 
Rev.  St.  Idaho,  1887,  §  2498.  But  see  Act  March  9,  1903  (Sess.  Laws 
1903,  p.  345).  And  see  McNeil  v.  Williams,  64  Fla.  97,  59  South. 
562;  Bates  v.  Capital  State  Bank,  21  Idaho,  141,  121  Pac.  561;  Bled- 
soe  v.  Fitts,  47  Tex.  Civ.  App.  578,  105  S.  W.  1142,  certified  questions  an- 
swered Atteberry  v.  Burnett,  102  Tex.  118,  113  S.  W.  526.  But  he  cannot 
.  sell  it.  Bledsoe  v.  Fitts,  supra ;  Ligon  v.  Wharton  (Tex.  Civ.  App.)  120  S.  W. 
930;  Scruggs  v.  Gage  (Tex.  Civ.  App.)  182  S.  W.  696.  Nor  mortgage  it. 
Shomaker  v.  Waters,  59  Fla.  414,  52  South.  586 ;  Walker  v.  Farmers'  &  Mer- 
chanljs'  State  Bank  of  Winters  (Tex.  Civ.  App.)  146  S.  W.  312.  Under  Rev. 
St.  1887,  §  2499,  if  a  wife  has  just  cause  to  apprehend  that  her  husband  has 
mismanaged  or  will  mismanage  her  separate  property,  she  or  some  person 
in  her  behalf  may  apply  for  the  appointment  of  a  trustee  to  manage  the 
same.  Sencerbox  v.  First  Nat.  Bank,  14  Idaho,  95,  93  Pac.  369.  Under 
Const.  1885,  art.  11,  §  1,  declaring  that  all  property  of  a  wife  owned  be- 
fore marriage  or  acquired  by  gift,  devise,  bequest,  descent,  or  purchase  shall 
be  her  property,  she  may,  at  her  pleasure,  terminate  the  control  over  her 
property  conferred  by  Gen.  St.  1906,  §  2589,  upon  the  husband.  Florida  Citrus 
Exchange  v.  Grisham,  65  Fla.  46,  61  South.  123. 


202        WIFE'S  EQUITABLE  AND  STATUTORY  SEPARATE  ESTATE     (Ch.  5 

that  she  can  use,  manage,  and  control  her  property  as  if  she  were 
unmarried,60  subject,  however,  to  certain  restrictions  on  her  power 
to  mortgage  or  convey  her  property  61  and  to  charge  the  same  for 
debts.82 


POWER  TO  DISPOSE  OF  STATUTORY  SEPARATE  ES- 
TATE 

79.  A  married  woman  has  no  power  to  dispose  of  her  statutory 
separate  estate  unless  the  power  is  expressly  or  impliedly 
given  her  by  the  statute.  Though  some  courts  held  other- 
wise in  the  case  of  personal  property,  the  rule  is  that  a 
statute  merely  giving  the  right  to  hold  and  enjoy,  or  the 
jus  tenendi,  does  not  include  the  jus  disponendi. 
V,  I**7 

A  statute  which  merely  gives  a  married  woman  the  right  to  hold, 
own,  possess,  and  enjoy  as  her  separate  property  real  and  personal 
property  owned  before  or  acquired  after  marriage,  or  which  gives 
her  the  right  to  hold  such  property  to  her  sole  and  separate  use,  as  if 
she  were  a  single  female,  does  not  confer  on  her  the  power  to  dis- 
pose of  real  estate.03  The  jus  disponendi  will  not  be  implied  from 
a  bare  jus  tenendi.6*  Under  a  statute  providing  that  a  married 

eo  Parent  v.  Callerand,  64  111.  97;  Southard  v.  Plunimer,  36  Me.  64;  Ago 
v.  Canner,  167  Mass.  390,  45  N.  E.  754 ;  Pomeroy  v.  Manhattan  Life  Ins.  Co., 
40  111.  398;  Barton  v.  Barton,  32  Md.  214;  Teckenbrock  v.  McLaughlin, 
246  Mo.  711,  152  S.  W.  38;  Nelson  v.  Nelson,  176  N.  C.  191,  96  S.  E.  986. 
Where  a  husband's  possession  of  his  wife's  land  accrued  prior  to  the  amend- 
ment of  1889  (Rev.  St.  1889,  §  6869)  to  the  married  woman's  act,  which  de- 
prived a  husband  of  his  former  right  to  possession,  such  amendment  did  not 
change  the  husband's  right.  Powell  v.  Powell,  267  Mo.  117,  183  S.  W.  625, 
judgment  reversed  on  motion  to  modify  267  Mo.  117,  188  S.  W.  795.  A 
wife  may  sue  her  husband  to  recover  or  protect  her  separate  estate.  In  re 
Hoffman  (D.  C.)  199  Fed.  448;  Masterman  v.  Masterman,  129  Md.  167,  98 
Atl.  537;  Ireland  v.  Ireland,  244  Pa.  489,  90  Atl.  911;  Carpenter  v.  Car- 
penter, 154  Mich.  100,  117  N.  W.  598;  De  Baun's  Ex'r  v.  De  Baun,  119  Va. 
85,  89  S.  E.  239. 

«i  See  post,  p.  209. 

«2  See  post,  p.  203. 

«s  Cole  v.  Van  Riper,  44  111.  58;  Bressler  v.  Kent.  61  HI.  426,  14  Am.  Rep. 
67;  Naylor  v.  Field,  29  N.  J.  Law,  287.  In  Louisiana,  before  the  passage 
of  the  recent  statute  (Act  No.  94,  of  1916)  a  married  woman  had  no  capacity 
to  alienate  or  incumber  her  separate  property  without  the  authorization  of 
her  husband  or  of  a  competent  court.  Douglas  v.  Nicholson,  140  La.  1098, 
74  South.  566. 

e*  Miller  v.  Wetherby,  12  Iowa,  415;  Cole  v.  Van  Riper,  44  111.  58;  Bress- 
ler  v.  Kent,  61  111.  426,  14  Am.  Rep.  67 ;  Naylor  v.  Field,  29  N.  J.  Law,  287. 


}§  80-82        POWER  TO  CHARGE  STATUTORY  ESTATE  BY  CONTRACT        203 

woman  shall  have  the  same  rights  over  her  separate  property  as 
if  unmarried,  it  has,  however,  been  held  that  she  has  the  right  to 
dispose  of  it.65 

In  respect  to  personalty,  it  has  been  held  in  many  states  that  the 
jus  disponendi  is  a  necessary  incident  to  the  separate  ownership  of 
personal  property.66  Some  courts  have  nevertheless  refused  to 
recognize  the  distinction.67  In  most  of  the  states,  however,  the 
power  of  married  women  to  dispose  of  their  separate  property  has 
been  definitely  granted  or  denied  in  the  statutes  creating  a  separate 
estate.68 


POWER  TO  CHARGE  STATUTORY  SEPARATE  ESTATE 

BY  CONTRACT 

80.  In  the  absence  of  express  enactment,  statutes  giving  married 
women  separate  property  do>  not  impliedly  authorize  a 
married  woman  to  contract  generally;  but  she  can  con- 
tract so  as  to  render  her  statutory  separate  property  liable. 

(a)  Where  the  contract  would  bind  her  equitable  separate  prop- 

erty. 

(b)  Where  the  statute  expressly  authorizes  her  to  contract  with 

reference  to  her  separate  property. 

(c)  Where  the  statute  enacts  that  she  may  enjoy  her  separate 

property  as  if  sole. 

65  Real  v.  Warren,  2  Gray  (Mass.)  447;  HARRIS  v.  SPENCER,  71  Conn. 
233,  41  Atl.  773,  Cooley  Cas.  Persons  and  Domestic  Relations,  102;  Wapcner 
v.  Mutual  Life  Ins.  Co.  of  New  York,  88  Conn.  536,  91  Atl.  1012 ;  Stewart  v. 
Weiser  Lumber  Co.,  21  Idaho,  340,  121  Pac.  775;  Cropper*  v.  Bowles,  150 
Ky.  393,  150  S.  W.  380 ;  Marsh  v.  Marsh,  92  Neb.  189,  137  N.  W.  1122 ;  Beln- 
brink  v.  Fox,  121  Md.  102,  88  Atl.  106.  In  some  states  the  husband  must 
join  in  the  deed.  Council  v.  Pridgen,  153  N.  C.  443,  69  S.  E.  401 ;  Phillips 
v.  Hoskins,  128  Ky.  371,  108  S.  W.  283 ;  Schickhaus  v.  Sanford,  83  N.  J.  Eq. 
454,  91  Atl.  878;  Blondin  v.  Brooks,  83  Vt.  472,  76  Atl.  184. 

ee  Naylor  v.  Field,  29  N.  J.  Law,  287;  Harding  v.  Cobb,  47  Miss.  509; 
Beard  v.  Dedolph,  29  Wis.  136.  See,  also,  Townsend  v.  Huntzinger,  41  Ind. 
App,  223,  83  N.  E.  619.  There  is  no  restriction  upon  the  right  of  the  wife 
to  dispose  of  her  personalty  as  fully  and  freely  as  if  she  had  remained  un- 
married. Deese  v.  Deese,  176  N.  C.  527,  97  S.  E.  475. 

67  Swift  v.  Luce,  27  Me.  285;  Brown  v.  Fifield,  4  Mich.  322;  Scott  v. 
Scott,  13  Ind.  225;  Moore  v.  Cornell,  68  Pa.  320. 

os  See  the  statutes  of  the  various  states.  In  Indiana  It  Is  held  that 
a  statute  restricting  the  right  of  a  married  woman  to  convey  her  realty  does 
not  affect  her  right  to  convey  personalty.  Townsend  v.  Huntzinger,  41  Ind. 
App.  223,  83  N.  E.  619.  A  married  woman  has  the  same  status  as  her 


204         WIFE'S  EQUITABLE  AND  STATUTORY  SEPARATE  ESTATE     (Ch.  5 

81.  Statutes  authorizing  married  women  to  acquire  and  hold  prop- 

erty authorize  the  performance  of  all  acts  and  the  making 
of  all  contracts  that  are  necessarily  incident  thereto,  but 
do  not  abrogate  the  common  law  further  than  is  necessary 
to  give  them  full  effect. 

82.  Equitable  jurisdiction  over  equitable  separate  property  has  been 

extended  in  some  states  to  statutory  separate  property,  but 
not  in  all  states.  Contracts  concerning  such  property  are 
therefore  enforceable. 

(a)  In  some  states,  in  equity  only. 

(b)  In  other  states,  at  law  only. 

(c)  In  other  states,  either  at  law  or  in  equity. 

Whatever  power  a  married  woman  has  to  contract  is  given  her 
by  the  statutes,  and  difficult  questions  sometimes  arise  in  deter- 
mining the  extent  to  which  the  statutes  giving  the  wife  the  right 
to  hold  and  enjoy  her  separate  property  free  from  the  control 
of  her  husband  have  removed  the  common-law  disability  of  mar- 
ried women  to  contract,  and  there  is  considerable  conflict  in  the 
cases  on  some  points.  It  is  clear  that,  while  such  statutes  give  a 
married  woman  certain  rights  in  regard  to  her  statutory  separate 
property  which  she  did  not  have  at  common  law,  they  fall  far 
short  of  placing  her  in  the  position  of  a  feme  sole.  They  are  held  to 
abridge  the  rights  of  the  husband,  and  remove  the  disabilities  of 
the  wife,  only  so  far  as  they  expressly  do  so,  and  are  held  not  to 
impliedly  abrogate  the  common  law  beyond  their  terms.69  Such 
statutes,  therefore,  in  the  absence  of  any  enactment  allowing  mar- 
ried women  to  contract  as  if  sole,  do  not  enable  her  to  make  con- 
tracts not  connected  with  her  separate  property.70  Of  course, 

husband  as  to  the  right  to  convey  property.  Farmers'  State  Bank  of  Ada 
v.  Keen  (Okl.)  167  Pac.  207. 

«»  Speier  v.  Opfer,  73  Mich.  35,  40  N.  W.  909,  2  L.  R.  A.  345,  16  Am.  St. 
Rep.  556 ;  Russel  v.  People's  Sav.  Bank,  39  Mich.  671,  33  Am.  Rep.  444 ;  and 
cases  hereafter  cited.  Thus  In  Michigan,  as  in  some  other  states,  the  statute 
has  not  given  her  the  power  to  contract,  except  in  regard  to  her  separate 
property.  It  has  therefore  been  held  that  as  real  property  held  by  husband 
and  wife  jointly  Is  held  by  them  as  tenants  by  the  entirety,  and  cannot 
be  regarded  as  the  wife's  separate  property,  she  is  not  liable  on  a  contract 
made  jointly  with  her  husband  for  improvements  on  such  property.  Speier 
r.  Opfer,  73  Mich.  35,  40  N.  W.  909,  2  L.  R.  A.  345,  16  Am.  St  Rep.  556; 
Curtis  v.  Crowe,  74  Mich.  99,  41  N.  W.  876.  But  see  Dreutzer  v.  Lawrence, 
58  Wis.  594,  17  N.  W.  423. 

rofiussel  v.  People's  Sav.  Bank,  39  Mich.  671,  33  Am.  Rep.  444;   Speier  v. 


§§  80-82)   POWER  TO  CHARGE  STATUTORY  ESTATE  BY  CONTRACT   205 

when  the  statute  completely  removes  the  disabilities  of  coverture 
and  gives  her  power  to  contract  as  if  sole,  a  married  woman  may 
charge  her  separate  estate  by  contract  as  freely  as  an  unmarried 
woman.71 

By  the  statutes  of  some  states  the  wife  is  expressly  given  the 
power  to  make  contracts  "relating  to,"  or  "with  reference  to,"  or 
"in  respect  to,"  etc.,  her  separate  estate.72  These  expressions  are 
generally  held  to  include  whatever  is  necessary  to  the  full  enjoy- 
ment and  use  of  the  property;73  but  a  possible  incidental  benefit, 

Opfer,  73  Mich.  35,  40  N.  W.  909,  2  L,.  R.  A.  345,  16  Am.  St.  Rep.  556 ;  Canal] 
Bank  v.  Partee,  99  U.  S.  325,  25  L.  Ed.  390 ;  Bank  of  Commerce  v.  Baldwin, 
12  Idaho,  202,  85  Pac.  497;  Id.,  14  Idaho,  75,  93  Pac.  504,  17  L.  R.  A.  (N.  S.) 
676;  State  v.  Robinson,  143  N.  O.  620,  56  S.  E.  918;  Gary  v.  Dixon,  51 
Miss  593;  Jenne  v.  Marble,  37  Mich.  319;  Hodges  v.  Price,  18  Ma.  342; 
O'Daily  v.  Morris,  31  Ind.  Ill;  McKee  v.  Reynolds,  26  Iowa,  578;  Pond 
v.  Carpenter,  12  Minn.  430  (Gil.  315);  Ritch  v.  Hyatt,  3  MacArthur  (D.  C.) 
536.  See,  also,  Thompson  v.  Minnich,  227  111.  430,  81  N.  E.  336. 

71  Such  statutes  have  been  enacted  in  many  states.    See  Crum  v.  Sawyer, 
132  111.  443,  24  N.  E.  956;    Young  v.  McFadden,  125  Ind.  254,  25  N.  E.  284 
(except  contracts  of  suretyship);    McCorkle  v.  Goldsmith,  60  Mo.  App.  475 
(except  contracts  with  husband) ;    Colonial,  etc.,   Mortgage  Co.  v.  Bradley, 
4  S.  D.  158,  55  N.  W.  1108;    Bogie  v.  Nelson,  151  Ky.  443,  152  S.  W.  250: ; 
Lyell  v.  Walbach,  113  Md.  574,  77  Atl.  1111,  33  L.  R.  A.  (N.  S.)  741 ;    Cooper 
v.  Burel,  129  Ark.  261,  195  S.  W.  356;    McFarland  v.  Johnson,  22  Idaho, 
€94,  127  Pac.  911.     And  see  Peter  Adams  Paper  Co.  v.  Cassard,  206  Pa.. 
179,  55  Atl.  949. 

72  See  the  statutes  of  the  various  states. 

73  Marlow  v.  Barlew,  53  Gal.  456 ;    Merrell  v.  Purdy,  129  Wis.  331,  109  N. 
W.  82;    T.  G.  Northwall  Co.  v.  Osgood,  80  Neb.  764,  115  N.  W.  308;    Blair 
v.  Teel  (Tex.  Civ.  App.)  152  S.  W.  878;    Ball  &  Sheppard  v.  Paquin,  140  N. 
C.  83,  52  S.  E.  410,  3  L,.  R.  A.  (N.  S.)  307;    Sample  v.  Guyer,  143  Ala.  613, 
42  South.  106;    Gilbert  v.  Brown,  123  Ky.  703,  97  S.  W.  40,  7  L.  R.  A.  (N. 
S.)  1053;    Culberhouse  v.  Hawthorne,  107  Ark.  462,  156  S.  W.  421;    Bailey 
v.  Fink,  129  Wis.  373,  109  N.  W.  86;    Micou  v.  McDonald,  55  Fla.  776,  46 
South.  291;    Parker  v.  Kane,  4  Allen  (Mass.)  346;    Basford  v.  Pearson,  7 
Allen  (Mass.)  504;    Burr  v.  Swan,  118  Mass.  588;    Albin  v.  Lord,  39  N.  H. 
196,  202;    Batchelder  v.  Sargent,  47  N.  H.  262;    McCormick  v.  Holbrook,  22 
Iowa,  487,  92  Am.  Dec.  400.     A  married  woman's  agreement  to  devise  is 
one  "concerning  or  relating"  to  her  separate  property  within  meaning  of 
the  statute.     Steinberger  v.  Young,  175  Cal.  81,  165  Pac.  432.     A  married 
woman  living  in  the  home  of  her  husband  may  bind  her  separate  estate    by 
a  contract  providing  for  the  payment  of  a  domestic,  and,  though  she  at 
the  time  owned  no  separate  estate,  such  contract,  upon  the  married  woman's 
acquiring  a  separate  estate,  is  upon  principles  of  estoppel  binding  on  such 
estate.     Bolthouse  v.  De  Spelder,  181  Mich.  153,  147  N.  W.  589.     Where, 
by  a  contract  for  the  support  of  C.,  her  married  daughters  were  protected 
from  liability  under  the  statutes  for  furnishing  her  support  in  case  she  be- 
came unable  to  maintain  herself,  such  contract  operated  to  the  benefit  of 
the  daughters'  separate  estates.    Payne  v.  Payne,  129  Wis.  450,  109  N.  W. 


206         WIFE'S  EQUITABLE  AND  STATUTORY  SEPARATE  ESTATE     (Ch.  5 

as  when  a  woman  indorses  a  note  for  the  benefit  of  a  corporation 
in  which  she  is  a  stockholder,  is  too  remote.74  "Such  a  contract," 
said  Judge  Cooley,  "is  not  within  the  words  of  the  statute.  Neither 
is  it  within  the  spirit  of  the  statute,  for  that  had  in  view  the  reliev- 
ing of  the  wife  of  disabilities  which  operated  unfairly  and  oppres- 
sively, and  which  hampered  her  in  the  control  and  disposition  of 
her  property  for  the  benefit  of  herself  and  her  family.  It  was  not  its 
purpose  to  give  her  a  general  power  to  render  herself  personally  re- 
sponsible upon  engagements  for  any  and  every  consideration  which 
would  support  a  promise  at  the  common  law.  *  *  *  The  test 
of  competency  is  to  be  found  in  this:  that  it  does  Or  does  not  deal 
with  the  individual  estate.  Possible  incidental  benefits  cannot  sup- 
port it."  T5  A  contract  to  sell  her  separate  estate  is  "in  respect  to" 
her  separate  property ; 76  and  so,  too,  is  a  mortgage  thereon." 
Notes  and  other  obligations,  given  for  the  price  of  property,  on  its 

105.  Under  Code  N.  M.  1915,  §  2750,  permitting  a  married  woman  to  enter 
into  any  engagement  respecting  property  which  she  might  if  unmarried,  a 
note  is  an  "engagement  respecting  property,"  which  she  may  make,  although 
enforceable  only  against  her  separate  property.  First  Sav.  Bank  &  Trust 
Co.  v.  Flournoy,  24  N.  M.  256,  171  Pac.  793. 

i*  Russel  v.  People's  Sav.  Bank,  39  Mich.  671,  33  Am.  Rep.  444. 

76  Where  a  married  woman  executed  a  note  for  her  brother's  benefit,  the 
mere  hope  that  by  bettering  her  brother's  financial  condition  by  the  pro- 
ceeds of  such  note  he  might  be  able  to  repay  other  money  due  her,  wa£ 
not  a  "benefit"  to  her  estate  contemplated  by  the  statute.  First  Nat.  Bank 
of  Freehold  v.  Rutter,  91  N.  J.  Law,  424,  104  Atl.  138,  aflirmed  92  N.  J.  Law, 
621,  106  Atl.  371. 

76  Dunn  v.'Stowers,  104  Va.  290,  51  S.  E.  366;  Basford  v.  Pearson,  7  Al- 
len (Mass.)  504 ;  Baker  v.  Hathaway,  5  Allen  (Mass.)  103 ;  Richmond  v.  Tib- 
bies, 26  Iowa,  474.  See,  also,  Dobbins  v.  Thomas,  26  App.  D.  C.  157,  hold- 
ing that  a  contract  made-  by  a  married  woman  for  the  exchange  of  real 
estate  and  for  the  purchase  of  personal  property  must,  under  Code,  §  1156 
(31  Stat.  1374,  c.  854),  be  deemed  to  have  been  made  with  reference  to  her 
separate  estate ;  there  being  no  contrary  intent  expressed.  Compare  Isphord- 
ing  v.  Wolfe,  36  Ind.  App.  250,  75  N.  E.  598,  holding  that  a  contract  to  pay 
for  services  rendered  by  a  broker  on  the  sale  of  the  land  of  a  married 
woman  was  valid. 

"Marlow  v.  Barlew,  53  Cal.  456;  Messer  v.  Smyth,  58  N.  H.  298;  Col- 
lier v.  Doe  ex  dem.  Alexander,  142  Ala.  422,  38  South.  244 ;  Mercantile  Exch. 
Bank  v.  Taylor,  51  Fla.  473,  41  South.  22.  Power  to  borrow  money,  see 
Feather  v.  Feather's  Estate,  116  Mich.  384,  74  N.  W.  524;  June  v.  Labadie, 
138  Mich.  52.  100  N.  W.  996;  Arnold  v.  McBride,  78  Ark.  275,  93  S.  W. 
989 ;  SIDWAY  v.  NICHOL,  62  Ark.  146,  34  S.  W.  529,  Cooley  Cas.  Persons  and 
Domestic  Relations,  98;  Scott  v.  Collier,  166  Ind.  644,  78  N.  E.  184;  Blair  v. 
Teel  (Tex.  Civ.  App.)  152  S.  W.  878;  Rood  v.  Wright,  124  Ga.  849,  53 
S.  E.  390. 


§§  80-82)   POWER  TO  CHARGE  STATUTORY  ESTATE  BY  CONTRACT   207 

purchase  by  her,  have  been  held  to  be  contracts  "in  respect  to"  her 
separate  property,78  though  there  are  cases  holding  the  contrary.79 

Many  illustrations  might  be  cited  to  show  that  the  general  rule  is 
that  a  married  woman  has  no  powers  now  which  she  did  not  have  at 
common  law,  except  such  as  are  given  her  by  the  statute  and  such 
as  are  necessarily  implied  as  incidental  thereto.80  Thus,  where  a 
statute  authorized  a  married  woman  "to  contract,  sell,  transfer, 
mortgage,  convey,  devise,  and  bequeath"  her  separate  statutory 
property  "in  the  same  manner  and  with  like  effect  as  if  unmarried," 
a  transfer  of  a  note  owned  by  a  married  woman,  by  indorsement,  as 
collateral  security  for  the  debt  of  another,  was  held  void,  as  the 
statute  did  not  empower  her  to  enter  into  a  contract  of  surety- 
ship.81 

It  has  been  shown  in  the  preceding  section  that,  under  a  statute 
providing  that  a  married  woman  shall  have  the  same  rights  over 


v.  Smyth,  58  N.  H.  298;  Scott  v.  Collier,  166  Ind.  644,  78  N. 
E.  184  ;  Nadel  v.  Weber  Bros.  Shoe  Co.,  70  Fla.  218,  70  South.  20,  L.  R.  A. 
1916D,  1230  ;  Rogers  v.  Eaton,  181  Mich.  620,  148  N.  W.  348  ;  Booth  Mercan- 
tile Co.  v.  Murphy,  14  Idaho,  212,  93  Pac.  777;  Merrell  v.  Purdy,  129  Wis. 
331,  109  N.  W.  82;  Dailey  v.  Singer  Manufacturing  Co.,  88  Mo.  301;  Till- 
man  v.  Shackleton,  15  Mich.  447,  93  Am.  Dec.  198  ;  Kriz  v.  Peege,  119  Wis. 
105,  95  N.  W.  108.  Under  the  New  York  married  woman's  act,  a  married 
woman  may  borrow  money  and  purchase  upon  credit  any  property  necessary 
or  convenient  for  the  purpose  of  commencing,  as  well  as  carrying  on,  a  trade 
or  business.  Frecking  v.  Rolland,  53  N.  Y.  422.  A  mortgage  made  by  a 
married  woman  as  part  of  the  transaction  by  which  she  gains  title  to  the 
land  is  valid,  though  it  also  secures  a  debt  of  her  husband  or  some  other 
person.  Conkling  v.  Levie,  66  Neb.  132,  94  N.  W.  987,  988.  And,  to  the  same 
effect,  see  Bateman  v.  Cherokee  Fertilizer  Co.,  21  Ga.  App.  158,  93  S.  E. 
1021.  Under  G.  L.  Vt.  3521,  a  married  woman  may  buy  real  estate  and  bind 
herself  for  its  payment,  and  that  she  has  no  separate  estate  does  not  affect 
her  personal  liability.  Seaver  v.  Lang,  92  Vt.  501,  104  Atl.  877.  A  married 
woman,  buying  a  horse  and  using  it  in  business,  is  liable  for  the  price. 
People's  Trust  Co.  v."  Merrill,  78  N.  H.  540,  102  Atl.  827. 

7  9  Jones  v.  Crosthwaite,  17  Iowa,  393;  Schneider  v.  Garland,  1  Mackey 
(D.  C.)  350;  Carpenter  v.  Mitchell,  50  111.  470. 

so  Bailey  v.  Fink,  129  Wis.  373,  109  N.  W.  86;  Citizens'  State  Bank  of 
Wood  River  v.  Smout,  62  Neb.  223,  86  N.  W.  1068;  Stack  v.  Padden,  111 
Wis.  42,  86  N.  W.  568  ;  Burns  v.  Cooper,  140  Fed.  273,  72  C.  C.  A.  25  ;  Smith 
v.  Howe,  31  Ind.  233;  Grand  Island  Banking  Co.  v.  Wright,  53  Neb.  574, 
74  N.  W.  82;  Farmers'  Bank  v.  Boyd,  67  Neb.  497,  93  N.  W.  676. 

si  Russel  v.  People's  Sav.  Bank,  39  Mich.  67.1,  33  Am.  Rep.  444.  See,  also, 
Hall  v.  Hall,  118  Ky.  656,  82  S.  W.  269;  Garrigue  v.  Kellar,  164  Ind.  676, 
74  N.  E.  523,  69  L.  R.  A.  870,  108  Am.  St.  Rep.  324;  Field  v.  Campbell,  164 
Ind.  389,  72  N.  E.  260,  108  Am.  St.  Rep.  301;  Sample  v.  Guyer,  143  Ala. 
613,  42  South.  106;  Gross  v.  Whiteley,  128  Ga.  79,  57  S.  E.  94. 


208        WIFE'S  EQUITABLE  AND  STATUTORY  SEPARATE  ESTATE     (Ch.  5 

her  separate  property  as  if  unmarried,  she  has  the  right  to  dispose 
of  it,82  or  to  agree  to  dispose  of  it,88  but  that  the  jus  disponendi  will 
not  be  implied  from  a  bare  jus  tenendi ; 8*  that,  for  instance,  a  stat- 
ute giving  the  right  to  hold,  own,  possess,  and  enjoy,88  or  to-  hold 
to  her  sole  and  separate  use  as  if  she  were  a  single  female,86  does 
not  include  the  power  to  dispose  of  real  estate.  It  has  also  been 
pointed  out  that  in  some  states  it  has  been  held  that  the  rule  is 
different  in  the  case  of  personalty,  and  that  the  jus  disponendi  is  a 
necessary  incident  to  the  separate  ownership  of  personal  property,87 
but  that  this  distinction  is  not  recognized  in  all  the  states.88  Where 
there  is  no  express  statutory  authority  to  contract,  but  it  is  en- 
acted, as  in  many  states,  that  married  women  may  hold,  enjoy,  and 
possess  their  separate  property  as  if  sole,  they  may  make  all  such 
contracts  as  are  necessarily  incident  to  such  enjoyment.89  Under 
such  a  statute  a  married  woman  has  been  held  to  have  the  power  to 
contract  for  labor  and  materials  for  the  construction  of  a  hotel 
on  her  separate  real  estate,  on  the  ground  that  the  intention  of 
the  statute  could  not  be  accomplished  unless  it  also  removed  the 
common-law  disability  to  the  extent  of  empowering  the  wife  to 
make  all  contracts  necessary  and  convenient  to  the  full  enjoyment 
of  her  estate.90  And  generally  it  may  be  said  that  she  has  power 
to  contract  and  charge  her  separate  estate  for  improvements  there- 
on 91  for  work  and  labor  in  the  cultivation  of  her  farm  92  and  for  the 

82  Deal  v.  Warren,  2  Gray  (Mass.)  447;    ante,  p.  202. 

ss  Dreutzer  v.  Lawrence,  58  Wis.  594,  17  N.  W.  423. 

s*  Miller  v.  Wetherby,  12  Iowa,  415.  And  see  Cole  v.  Van  Riper,  44  111. 
58;  Dressier  v.  Kent,  61  111.  426,  14  Am.  Rep.  67;  Naylor  v.  Field,  29  N.  J. 
Law,  287;  ante,  p. -202. 

ss  Cole  v.  Van  Riper,  44  111.  58 ;  Bressler  v.  Kent,  61  111.  426,  14  Am. 
Rep.  67. 

se  Naylor  v.  Field,  29  N.  J.  Law,  287. 

s  i  Naylor  v.  Field,  29  N.  J.  Law,  287;  Harding  v.  Cobb,  47  Miss.  599; 
Beard  v.  Dedolph,  29  Wis.  136 ;  ante,  p.  203. 

s  s  Swift  v.  Luce,  27  Me.  285;  Brown  v.  Fifield,  4  Mich.  322;  Scott  v. 
Scott,  13  Ind.  225;  Moore  v.  Cornell,  68  Pa.  320. 

s»Conway  v.  Smith,  13  Wis.  140;  Cookson  v.  Toole,  59  111.  519;  Williams 
v.  Hugunin,  69  111.  214,  18  Am.  Rep.  607;  Smith  v.  Howe,  31  Ind.  233; 
Lindley  v.  Cross,  Id.  106,  99  Am.  Dec.  610;  Duren  v.  Getchell,  55  Me.  241; 
Mahon  v.  Gormley,  24  Pa.  80 ;  Wright  v.  Blackwood,  57  Tex.  644. 

»o  Conway  v.  Smith,  13  Wis.  140. 

»iBankard  v.  Shaw,  199  Pa.  623,  49  Atl.  230;  Popp  v.  Connery,  138  Mich. 
84,  101  N.  W.  54,  110  Am.  St.  Rep.  304 ;  McAnally  v.  Hawkins  Lumber  Co., 

»2  Cookson  v.  Toole,  59  111.  515. 


§§  80-82)   POWER  TO  CHARGE  STATUTORY  ESTATE  BY  CONTRACT   209 

purchase  of  the  necessary  tools  and  live  stock  for  the  farm.93  So, 
too,  in  many  states  she  may  bind  her  estate  for  necessaries  and 
family  expenses.04 

While  the  courts  have  generally  said  that  married  women's  sepa- 
rate property  acts,  being  in  derogation  of  common  law,  will  be 
strictly  construed,  this  does  not  mean  that  the  court  can  refuse  to 
give  full  effect  to  their  terms.  It  was  said  in  a  leading  case,  under 
a  statute  making  it  lawful  for  a  feme  covert  to  acquire  title  to  real 
estate  by,  gift  or  grant,  and  to  hold  it  as  her  separate  estate,  that  the 
contract  of  a  married  woman  to  assume  the  payment  of  a  mort- 
gage as  part  of  the  purchase  money  for  land  conveyed  to  her  was 
valid ;  that  the  law  did  not  intend  that  she  could  acquire  property 
without  paying  for  it;  and  that  the  power  to  acquire  and  hold  in- 
cluded the  right  to  do  all  acts  reasonably  necessary  in  acquiring 
and  holding.95  As  has  been  said  by  the  Pennsylvania  court :  "Her 
power  to  purchase  gives  her  a  right  to  contract  for  the  payment 
of  the  purchase  money  so  far  as  to  charge  the  property  with  such 
incumbrance  as  may  be  agreed  upon  to  secure  its  payment."  96 

Power  to  Charge  Separate  Property  for  Debts  of  Husband 

The  statutes  creating  the  separate  estate  of  married  women 
usually  provide  that  the  property  shall  be  held  by  the  wife  free  from 
the  debts  pf  her  husband,97  though  it  is  recognized  in  many  juris- 
dictions that  her  property  may  be  held  liable  for  her  husband's 
debts  if  he  is  allowed  to  deal  with  it  as  his  own  with  her  consent 

109  Ala.  397,  19  South.  417;  Vail  v.  Meyer,  71  Ind.  159;  Colvin  v.  Currier, 
22  Barb.  (N.  Y.)  371 ;  Micou  v.  McDonald,  55  Fla.  776,  46  South.  291 ;  Reid 
v.  Miller,  205  Mass.  80,  91  N.  E.  223;  Lemons  v.  Biddy  (Tex.  Civ.  App.) 
149  S.  W.  1065  (contract  for  digging  well). 

»3Batchelder  v.  Sargent,  47  N.  H.  262. 

9*  See  ante,  p.  -83. 

»5  Huyler's  Ex'rs  v.  Atwood,  26  N.  J.  Eq.  504.  And  see,  to  the  same  effect, 
Tiemeyer  v.  Turnquist,  85  N.  Y.  516,  39  Am.  Rep.  674;  Edwards  v.  Stacey, 
113  Tenn.  257,  82  S.  W.  470,  106  Am.  St.  Rep.  831;  Crosby  v.  Waters,  28 
Pa.  Super.  Ct.  559 ;  Cashman  v.  Henry,  75  N.  Y.  103,  31  Am.  Rep.  437 ;  Bow- 
er's Appeal,  68  Pa.  128. 

96  Bower's  Appeal,  68  Pa.  128. 

»7  See  the  statutes  of  the  various  states.  And  see  Humbird  Lumber  Co.  v. 
Doran,  24  Idaho,  507,  135  Pac.  66;  Alsdurf  v.  Williams,  196  111.  244,  63  N. 
E.  686;  Gage  v.  Dauchy,  34  N.  Y.  293 ;  Frost  v.  Knapp,  10  Pa.  Super.  Ct.  296 ; 
Smith  v.  Gott,  51  W.  Va.  141,  41  S.  E.  175;  Elliott  v.  Atkinson,  45  Ind.  App. 
290,  90  N.  E.  779 ;  Burnham  v.  Stoutt,  35  Utah,  250,  99  Pac.  1070 ;  In  re  Hill 
(D.  C.)  190  Fed.  390 ;  Farmers'  State  Bank  v.  Keen  (Okl.)  167  Pac.  207.  The 
provisions  of  the  statute  refer  to  such  debts  as  were  exclusively  those  of  the 
TIFF.P.&  D.REL.(3D  ED.)— 14 


210        WIFE'S  EQUITABLE  AND  STATUTORY  SEPARATE  ESTATE     (Ch.  5 

and  knowledge.08  Nevertheless,  the  question  has  often  arisen 
whether  the  wife  has  power  to  charge  her  estate  with  such  debts. 
Attention  has  already  been  called  to  the  fact  that  in  most  states 
the  wife  is  prohibited  from  entering  into  a  contract  of  suretyship," 
and  that  as  a  general  rule,  in  the  absence  of  a  statute  giving  her 
unlimited  power  to  contract,  she  can  charge  her  separate  estate  only 
by  contracts  with  reference  thereto  and  for  the  benefit  of  herself 
or  her  estate.1  In  accordance  with  these  rules  it  is  generally  held 
that  a  married  woman  cannot  charge  her  separate  estate  by  a  con- 
tract of  suretyship  for  the  purpose  of  securing  her  husband's  debt, 
or  by  an  assumption  of  his  debt.2  So  it  has  been  held  that  she  can- 
not sell  her  property  to  a  creditor  of  the  husband  in  extinguishment 
of  his  debt.8  It  is,  however,  generally  conceded  that  she  may  bor- 
row money  and  give  it  to  her  husband  to  be  used  in  the  payment 


husband,  and  not  debts  which  are  primarily  a  charge  against  the  wife's  es- 
tate. Schneider  v.  Breier's  Estate,  129  Wis.  446,  109  N.  W.  99,  6  L.  R,  A. 
(N.  S.)  917. 

»8  Wood  v.  Tant,  27  Colo.  App.  189,  149  Pac.  854;  O'Farrell  v.  Vickrage, 
163  111.  App.  519;  Lamb  v.  Lamb,  18  App.  Div.  250,  46  N.  T.  Supp.  219; 
Early  v.  Wilson,  31  Neb.  458,  48  N.  W.  148;  Mertens  v.  Schlemme,  68  N.  J. 
Eq.  544,  59  Atl.  808. 

»»  See  ante,  p.  160. 

1  See  ante,  p.  205. 

2  Gross  v.  Whiteley,  128  Ga.  79,  57  S.  E.  94 ;   Grosman  v.  Union  Trust  Co., 
228  Fed.  610,  143  C.  C.  A.  132,  Ann.  Cas.  1917B,  613,  affirmed  245  U.  S.  412, 
38  Sup.  Ct  147,  62  L.  Ed.  368  (construing  Texas  statute);    McLeod  v.  Poe, 
142  Ga.  254,  82  S.  E.  663 ;  Johnson  v.  Holland  (Tex.  Civ.  App.)  204  S.  W.  494 ; 
Underbill  v.  Mayer,  174  Ky.  229,  192  S.  W.  14;    Brady  v.  Equitable  Trust 
Co.,  of  Dover,  178  Ky.  693,  199  S.  W.  1082;    Red  River  Nat.  Bank  v.  Fer- 
guson (Tex.  Civ.  App.)  192  S.  W.  1088;    Simmons  v.  International  Harvester 
Co.,  22  Ga.  App.  358,  96  S.  E.  9;  Manor  Nat  Bank  v.  Lowery,  242  Pa.  559, 
89  Atl.  678 ;    Hamilton  v.  Moore,  136  La.  631,  67   South.  523 ;    Spencer  v. 
Leland,  178  Ala.  282,  59  South.  593;    Smith  v.  McDonald,  49  Ind.  App.  464, 
97  N.  E.  556;   Bauer  v.  Ambs,  144  App.  Div.  274,  128  N.  Y.  Supp.  1024  (un- 
less supported  by  independent  consideration).     But  see  Royal  v.  Southerland, 

168  N.  C.  405,  84  S.  E.  708,  Ann.  Cas.  1917B,  623;    Willard  v.  Greenwood, 
228  Mass.  549,  117  N.  E.  823.     Notes  signed  by  husband  and  wife,  in  con- 
sideration of  payee's  forbearance  to  sue  on  husband's  account,  were  based 
on  a  good  consideration  as  to  the  wife.     Markel  v.  De  Francesco,  93  Conn. 
355,  105  Atl.  703.    Extension  of  time  of  payment  of  husband's  debt  is  good 
consideration  as  to  the  wife.    O.  W.  Schultz  Lumber  Co.  v.  Robinson  (S.  D.) 

169  N.  W.  526.     Under  Laws  Ark.  1915,  p.  684,  §  1,  a  married  woman  may  be 
sued  and  judgment  obtained  on  her  note  and  open  account,  the  consideration 
of  which  was  a  debt  of  her  husband  to  plaintiff.    Holland  v.  Bond,  125  Ark. 
526,  189  S.  W.  165. 

•  Gross  v.  Whiteley,  328  Ga.  79,  57  S.  E.  94. 


§§  80-82)   POWER  TO  CHARGE  STATUTORY  ESTATE  BY  CONTRACT   211 

of  his  debts,  or  may  so  apply  it  directly,4  or  she  may  sell  her  prop- 
erty— the  purchaser  not  being  a  creditor — and  apply  the  proceeds 
to  the  payment  of  her  husband's  debts.5 

In  determining  the  validity  of  contracts  the  effect  of  which  is  to 
charge  the  separate  estate,  an  important,  and,  indeed,  controlling, 
element  is  whether  there  is  manifest  an  intent  to  charge ;  6  such  in- 
tent being  shown  in  the  instrument  itself.7  Thus  it  has  been  held 
that  a  married  woman  may  make  a  valid  mortgage  to  secure  her 
husband's  debt,  as  the  intent  to  charge  her  separate  estate  is 
thereby  manifested.8  The  liability  is,  however,  limited  to  the  prop- 

*  Gross  v.  Whiteley,  128  Ga.  79,  57  S.  E.  94 ;  Sample  v.  Guyer,  143  Ala. 
613,  42  South.  106;  Rood  v.  Wright,  124  Ga.  849,  53  S.  E.  390;  Allen  v.  Na- 
tional Bank  of  Tifton,  14  Ga.  App.  299,  80  S.  B.  697.  The  creditor  must  act 
in  good  faith.  Ginsberg  v.  People's  Bank  of  Savannah,  145  Ga.  815,  89  S. 
E.  1086;  Warren  v.  Crow,  198  Ala.  670,  73  South.  989.  The  statute  provid- 
ing that  the  separate  property  of  the  wife  shall  not  be  liable  for  the  hus- 
band's debts  was  not  designed  to  prevent  a  married  woman  from  borrowing 
money  or  to  deny  her  the  right  to  discharge  her  husband's  debts  or  to  do 
with  her  money  as  she  pleases,  and  a  lender's  rights  are  not  prejudiced  by 
the  wife's  disposition  of  the  money  borrowed  upon  her  note,  provided  the 
transaction  is  not  a  subterfuge  to  evade  the  statute,  or  a  scheme  to  procure 
the  obligation  of  the  wife  as  surety  for  her  husband  or  another.  Third 
Nat.  Bank  v.  Tierney,  128  Ky.  836,  110  S.  W.  293,  33  Ky.  Law  Rep.  418,  18 
L.  R.  A.  (N.  S.)  81.  Where  defendant's  husband  applied  for  a  loan  which 
plaintiff  refused  to  him,  but  granted  the  loan  to  defendant  on  her  note,  and 
she  received  no  benefit,  she  is  not  liable  thereon.  Oswald  v.  Jones,  254  Pa. 
32,  98  Atl.  784.  Where*-the  wife  borrows  money  from  her  husband's  creditor 
and  hands  it  back  in  payment  of  her  husband's  debt,  she  becomes,  though  by 
indirection,  a  surety  on  her  husband's  debt,  within  the  prohibition  of  Code 
1907,  §  4497.  Vinegar  Bend  Lumber  Co.  v.  Leftwich,  197  Ala.  352,  72  South. 
538. 

s  Gross  v.  Whiteley,  128  Ga.  79,  57  S.  E.  94.  See,  also,  KrLz  v.  Peege,  119 
Wis.  105,  95  N.  W.  108. 

e  Yale  v.  Dederer,  22  N.  Y.  450,  78  Am.  Dec.  216;  Williams  v.  Hfcgunin,* 
69  111.  214,  18  Am.  Rep.  607 ;  Grand  Island  Banking  Co.  v.  Wright,  53  Neb. 
574,  74  N.  W.  82. 

7  Yale  v.  Dederer,  22  N.  Y.  450,  78  Am.  Dec.  216 ;  Grand  Island  Banking 
Co.  v.  Wright,  53  Neb.  574,  74  N.  W.  82.  See,  also,  Ankeney  v.  Hannon,  147 
U.  S.  118,  13  Sup.  Ct.  206,  37  L.  Ed.  105,  where  it  was  held  that,  even  if  the 
contract  shows  an  intent  to  charge  the  wife's  separate  estate,  it  will  not  be 
extended  to  cover  after-acquired  property.  To  the  same  effect,  see  Sticken  v. 
Schmidt,  64  Ohio  St.  354,  60  N.  E.  561. 

s  Watts  v.  Gantt,  42  Neb.  869,  61  N.  W.  104;  Grand  Island  Banking  Go. 
v.  Wright,  53  Neb.  574,  74  N.  W.  82;  Goodrum  v.  Merchants'  &  Planters' 
Bank,  102  Ark.  326,  144  S.  W.  198,  Ann.  Cas.  1914A,  511;  Colonial  Bldg.  & 
Loan  Ass'n  v.  Griffin,  85  N.  J.  Eq.  455,  96  Atl.  901;  Young  v.  Brown,  136 
Tenn.  184,  188  S.  W.  1149;  Red  River  Nat.  Bank  v.  Ferguson  (Tex.)  206  S. 
W.  923  affirming  192  S.  W.  1088;  Brady  v.  Equitable  Trust  Co.  of  Dover, 
178  Ky.  693,  199  S.  W.  1082;  Miller  v.  Sanders,  98  Ky.  535,  33  S.  W.  621. 


212        WIFE'S  EQUITABLE  AND  STATUTORY  SEPARATE  ESTATE     (Ch.  5 

erty  in  regard  to  which  the  intent  is  thus  shown,  and  there  can  be 
no  judgment  for  a  deficiency  against  the  wife.* 

Equitable  or  Legal  Jurisdiction 

Contracts  which,  before  the  passage  of  these  acts,  were  binding 
in  equity  on  the  wife's  equitable  separate  estate,  are  under  most 
statutes  binding  in  equity  on  the  wife's  statutory  separate  estate. 
While  the  wife's  separate  estate  is  purely  a  legal  one  under  the 
statute,  it  is  held  in  most  states  that  equity  nevertheless  has  juris- 
diction to  charge  the  legal  estate  under  such  circumstances  as 
would  render  it  liable  if  the  separate  estate  were  a  creation  of 
equity.10  "The  jurisdiction  of  a  court  of  equity,"  it  has  been  said, 
"over  the  subject  [separate  property]  does  not  rest  upon  the  ground 
that  the  estate  of  the  wife  is  an  equitable  estate  merely,  but  upon 
the  ground  that  it  is  her  separate  estate,  which  is  equitably  subject 
to  contracts  and  engagements  entered  into  by  her  which  are  not 
legally  binding  upon  her  personally,  and  which  cannot  be  enforced 
by  law."  "  In  some  states  equitable  jurisdiction  over  legal  separate 
property  is  denied.12 

She  may  pledge  her  personal  property  to  secure  the  husband's  debt.  Just 
v.  State  Savings  Bank,  132  Mich.  600,  94  N.  W.  200;  Wirgman  v.  Miller, 
98  Ky.  620,  33  S.  W.  937;  Bartholomew  v.  Allentown  Nat.  Bank,  260  Pa. 
509,  103  Atl.  954.  But  see  Trotter  Bros.  v.  Downs,  200  Ala.  158,  75  South. 
906,  holding  that  under  Code  Ala.  1907,  §  4497,  wife  cannot  indirectly  be- 
come surety  for  husband  by  mortgaging  her  property  to  secure  money  with 
which  to  pay  his  debt.  And  see  Washburn  v.  Gray,  49  Ind.  App.  271,  97 
N.  E.  190.  A  deed  executed  by  a  wife  to  secure  a  loan  contemporaneously 
made  to  the  husband  is  void.  Gross  v.  Whitely,  128  Ga.  79,  57  S.  E.  94. 

o  Grand  Island  Banking  Co.  v.  Wright,  53  Neb.  574,  74  N.  W.  82 ;  Goll 
iv.  Fehr,  131  Wis.  141,  111  N.  W.  235;  Edwards  v.  Jefferson  Standard  Life 
Ins.  Co.,  173  N.  C.  614,  92  S.  E.  695. 

103  Pom.  Eq.  Jur.  §  1099 ;  Yale  v.  Dederer,  18  N.  Y.  265,  272,  72  Am.  Dec, 
503 ;  Ballin  v.  Dillaye,  37  N.  Y.  35 ;  Perkins  v.  Elliott,  23  N.  J.  Eq.  526;  Levi  v. 
Earl,  30  Ohio  St.  147;  Phillips  v.  Graves,  20  Ohio  St.  371,  389,  5  Am.  Rep. 
675;  Cox's  Adm'r  v.  Wood.  20  Ind.  54;  Pond  v.  Carpenter,  12  Minn.  430  (Gil. 
315);  Hall  v.  Dotson,  55  Tex.  520;  Wicks  v.  Mitchell,  9  Kan.  80;  Tbdd  v. 
Lee,  15  Wis.  365;  Donovan's  Appeal,  41  Conn.  551;  Johnson  v.  Cummins,  16 
N.  J.  Eq.  97,  105,  84  Am.  Dec.  142. 

11  Johnson  v.  Cummins,  16  N.  J.  Eq.  97,  84  Am.  Dec.  142.  See,  also,  Car- 
penter v.  Mitchell,  50  111.  470.  A  married  woman  is  not  bound  In  personam 
by  her  contract,  but  her  separate  property  may  be  charged  in  equity  and 
sold  for  its  purchase  money  or  for  money  or  labor  expended  in  improving  it 
or  upon  her  agreement  in  writing  made  for  its  benefit  Kelliher  v.  Kennard, 
75  Fla.  665,  79  South.  28. 

"West  v.  Laraway,  28  Mich.  464;  Gain  v.  Bunkley,  35  Miss.  119,  145; 
Maclay  v.  Love,  25  Cal.  367,  85  Am.  Dec.  133.  Compare  Vail  v.  Meyer,  71 
Ind,  159. 


§§  80-82)   POWER  TO  CHARGE  STATUTORY  ESTATE  BY  CONTRACT   213 

Such  contracts  as  can  be  made  by  a  married  woman  under  ex- 
press statutory  provision,  as  incident  to  her  separate  property,  and 
such  contracts  as  she  can  make,  as  necessary  to  the  separate  enjoy- 
ment of  her  property,  can  be  enforced  in  some  states  by  actions 
at  law.  The  court  says  in  Conway  v.  Smith  18  that  it  could  not  be 
assumed  that  the  Legislature  intended  to  rely  on  equitable  aid  to 
help  out  the  objects  of  the  statute,  and  that  it  necessarily  follows 
that  the  contracts  contemplated  by  the  statute  can  be  enforced  by 
legal  remedies.  It  was  held  in  that  case  that  an  action  at  law  would 
lie  on  a  promissory  note.  And  in  Cookson  v.  Toole  14  an  action  at 
law  for  work  and  labor  was  sustained,  the  court  holding  that  "the 
implication  of  capacity  to  contract  in  respect  to  her  separate  prop- 
erty, arising  under  the  statute,  is  an  implication  of  law,  and,  being 
an  implication  of  law,  and  not  of  equity,  the  capacity  to  contract 
within  the  scope  of  the  implication  is  necessarily  a  legal  capacity 
and  all  contracts  under  it  must  be  legal  contracts,  cognizable  by 
courts  of  law."  In  the  leading  case  of  Yale  v.  Dederer,15  however, 
under  a  similar  statute,  it  was  said  that  the  statute  does  not  remove 
the  legal  incapacity  which  prevents  a  married  woman  from  con- 
tracting debts.  When  a  married  woman's  contracts  can  be  en- 
forced at  law,  such  remedy  has  been  held  in  some  states  not  to  be 
exclusive,  but  cumulative,  and  that  equity  has  concurrent  juris- 
diction.16 

is  13  Wis.  125 ;  Krouskop  v.  Shontz,  51  Wis.  204,  8  N.  W.  241,  37  Am.  Rep. 
817.  But  see  Merrell  v.  Purdy,  129  Wis.  331,  109  N.  W.  82,  holding  that  a 
married  woman  may,  by  proper  instrument,  charge  her  separate  property 
for  any  obligation,  even  for  her  husband's  debt,  but  the  charge  is  only  en- 
forceable in  equity. 

i*  f>9  111.  515.  See,  also,  Williams  v.  Hugunin,  69  111.  214,  18  Am.  Rep.  607; 
Todd  v.  Lee,  15  Wis.  365. 

is  18  N.  Y.  265,  72  Am.  Dec.  503. 

IB  Phillips  v.  Graves,  20  Ohio  St.  371,  5  Am.  Rep.  675;  Mitchell  v.  Otey, 
23  Miss.  236;  Johnson  v.  Cummins,  16  N.  J.  Eq.  97,  84  Am.  Dec.  142;  1 
Story,  Eq.  Jur.  §  80. 


214  ANTENUPTIAL  AND  POSTNUPTIAL  SETTLEMENTS  (Ch.  6 

CHAPTER  VI 
ANTENUPTIAL   AND   POSTNUPTIAL   SETTLEMENTS 

83.  Antenuptial  Settlements. 

84.  Marriage  as  a  Consideration. 

85.  Reasonableness   of   Provision    for   Wife. 

86.  Settlements  Based  on  Antenuptial  Agreements. 

87.  Statute  of  Frauds. 
88-90.  Postnuptial  Settlements. 
91-92. 


ANTENUPTIAL  SETTLEMENTS 

83.  An  antenuptial  settlement  or  marriage  settlement  is  an  agree- 
ment entered  into  before  marriage,  and  in  consideration 
thereof,  between  an  intended  husband  and  wife,  or  between 
them  and  third  persons,  by  which  the  enjoyment  or  dev- 
olution of  property  is  regulated.  A  marriage  settlement — 

(a)  May  determine  the  rights  which  the  husband  and  wife  shall 

have  in  his  or  her  own,  or  in  each  other's,  property. 

(b)  But,  as  a  rule,  it  cannot  otherwise  vary  the  rights  and  obliga- 

tions  of  husband   and   wife,   arising   from  the  marriage 
relation. 

The  term  "settlement"  is  ordinarily  applied  to  agreements  en- 
tered into  before  marriage,  and  in  contemplation  and  consideration 
thereof,  by  which  the  enjoyment  and  devolution  of  property  is 
regulated.1  In  its  broadest  sense,  however,  the  term  applies  also 
to  settlements  or  agreements  made  after  marriage.  In  the  former 
case  they  are  called  "antenuptial  settlements,"  and  in  the  latter  case 
they  are  called  "postnuptial  settlements."  The  term  "marriage 
settlement"  is  often  applied  to  agreements  entered  into  after 
marriage — that  is,  to  postnuptial  settlements;  but  this  use  of  the 
term  is  improper.  A  marriage  settlement  is  essentially  an  agree- 
ment entered  into  before  marriage,  and  in  consideration  thereof.2 

1  Corker  v.  Corker,  87  Cal.  643,  25  Pac.  922. 

2  An  assignment  in  consideration  of  a  promise  to  marry  is  not  an  ante- 
nuptial contract  within  the  Massachusetts  statute  (Rev.  Laws,  c.  153,  §§  20, 
27).     Huntress  v.  Hanley,  195  Mass.  23G,  80  N.  E.  946.     An  oral  agreement, 
entered  into  and  reduced  to  writing  before  marriage  and  signed  after  mar- 
riage, settling  on  intended  wife  a  lot  owned  by  intended  husband  and  such 


§  83)  ANTENUPTIAL  SETTLEMENTS  215 

The  term  therefore  includes  antenuptial  settlements  only.  Mar- 
riage settlements  may  have  various  objects  in  view.  Ordinarily, 
the  purpose  is  to  alter  the  interests  which  the  husband  and  wife 
would  have  in  their  own  and  in  each  other's  property  by  the  law  of 
the  marriage  status,  and  to  fix  the  same  according  to  their  own 
agreement;  to  preserve  property  intact  in  a  particular  family,  or 
the  issue  pf  the  contemplated  union ;  or  to  prevent  the  dissipation 
of  the  property  of  either  party  by  extravagance.3  The  purpose  in 
most  cases  is  to  protect  the  .wife  and  children  against  want  from 
the  possible  loss  or  dissipation  of  property  by  the  husband.  "These 
marriage  settlements  are  benignly  intended  to  secure  to  the  wife 
a  certain  support  in  any  event,  and  to  guard  her  against  being 
overwhelmed  by  the  misfortunes  or  unkindness  or  vices  of  her 
husband.  They  usually  proceed  from  the  prudence  or  foresight 
of  friends,  or  the  warm  and  anxious  affection  of  parents;  and,  if 
fairly  made,  they  ought  to  be  supported  according  to  the  true  in- 
tent and  meaning  of  the  instrument  by  which  they  are  created.  A 
court  of  equity  will  carry  the  intention  of  these  settlements  into 
effect,  and  not  permit  the  intention  to  be  defeated."  4 

The  ordinary  rules  governing  the  construction  of  contracts  ap- 
ply to  antenuptial  settlements.5  In  so  far  as  the  contract  is 
ambiguous  the  situation  of  the  parties  and  the  surrounding  cir- 
cumstances may  be  considered.6  The  intention  of  the  parties  is 
controlling  and  must  govern,7  and  in  carrying  this  intention  into  ef- 
fe.ct  antenuptial  contracts  should  be  liberally  construed  without 
regard  to  the  strictly  technical  meaning  of  the  words  used,8  and  if 

personal  property  as  he  might  possess  at  his  death;  if  she  was  then  living  as 
his  wife  and  survived,  in  lieu  of  all  rights,  was  in  effect  an  antenuptial  con- 
tract. Haraldson  v.  Knutson,  142  Minn.  109,  171  N.  W.  201. 

sCrumlish  v.  Security  Trust  &  Safe  Deposit  Co.,  8  Del.  Ch.  375,  68  Atl. 
388. 

4  2  Kent,  Comm.  165 ;  Tabb  v.  Archer,  3  Hen.  &  M.  (Va.)  399,  3  Am.  Dec. 
657 ;  McLeod  v.  Board,  30  Tex.  238,  94  Am.  Dec.  301 ;  Crostwaight  v.  Hutch- 
inson,  2  Bibb  (Ky.)  407,  5  Am.  Dec.  619. 

6  Landes  v.  Landes,  268  111.  11,  108  N.  E.  691.    The  law  of  the  state  where 
an  antenuptial  agreement  was  made  and  the  marriage  was  celebrated  will 
govern  the  rights  of  the  parties.    New  Jersey  Title  Guaranty  &  Trust  Co.  v. 
Parker,  85  N.  J.  Eq.  557,  96  Atl.  574,  affirming  decree  New  Jersey  Title  Guar- 
antee &  Trust  Co.  v.  Same,  84  N.  J.  Eq.  351,  93  Atl.  196. 

e  In  re  Hubinger's  Estate,  150  Iowa,  307,  130  N.  W.  155. 

7  Gordan  v.  Munn,  88  Kan.  72,  127  Pac.  764,  Ann.  Cas.  1914A,  783,  denying 
rehearing  87  Kan.  624,   125  Pac.  1,  Ann.   Cas.   1914A,  783;    In  re  Deller's 
Estate,  141  Wis.  225,  124  N.  W.  278,  25  L.  R.  A.   (N.  S.)  751. 

a  Collins  v.  Bauman,  125  Ky.  846,  102  S.  W.  815. 


216  ANTENUPTIAL  AND  POSTNUPTIAL  SETTLEMENTS  (Ch.  6 

the  language  used  is  ambiguous  so  as  to  admit  of  more  than  one 
construction,  that  most  favorable  to  the  wife  should  be  adopted.8 

There  is  no  rule  of  law  nor  principle  of  public  policy  which  pre- 
vents husband  and  wife  from  thus  fixing,  by  an  agreement  before 
marriage,  the  rights  which  th«y  shall  have  in  each  other's  prop- 
erty.10 Such  agreements  in  so  far  as  they  provide  for  the  control 
and  disposition  of  the  property  of  the  parties  during  the  marriage, 
and  in  the  case  of  death  of  either,  are  generally  recognized  as  valid 
by  the  courts,  and  especially  by  courts  of  equity.11  By  these 
agreements  they  may  relinquish  the  rights  in  each  other's  property 
which  they  would  otherwise  acquire  therein  by  virtue  of  the  mar- 
riage.12 Thus,  they  may  relinquish  their  distributive  shares  in 
each  other's  estate  18  or  the  wife  may  bar  her  dower,  or  the  husband 

»  Mallow  v.  Eastes,  179  Ind.  267,  100  N.  E.  836 ;  In  re  Deller's  Estate,  141 
Wls.  255,  124  N.  W.  278,  25  L.  R.  A.  (N.  S.)  751 ;  Oesau  v.  Oesau's  Estate, 
157  Wis.  255,  147  N.  W.  62. 

102  Kent,  Comra.  163;  Campion  v.  Cotton,  17  Ves.  264;  Appleby  v. 
Appleby,  100  Minn.  408,  111  N.  W.  305,  10  I*  R.  A.  (N.  S.)  590,  117  Am.  St.  Rep. 
709,  10  Ann.  Gas.  563;  Kroell  v.  Kroell,  219-  111.  105,  76  N.  E.  63,  4  Ann.  Cas. 
801 ;  Rieger  v.  Schaible,  81  Neb.  33,  115  N.  W.  560,  17  L.  R.  A.  (N.  S.)  866, 
16  Ann.  Cas.  700 ;  Andrews  v.  Jones,  10  Ala.  400 ;  Tabb  v.  Archer,  3  Hen.  & 
M.  (Va.)  398,  3  Am.  Dec.  657;  Boardman'g  Appeal,  40>  Conn.  169;  Caulk 
v.  Fox,  13  Fla.  148;  Hanley  v.  Drumm,  31  La.  Ann.  106;  Peck  v.  Peck,  12 
R,  I.  485,  34  Am.  Rep.  702;  McLeod  v.  Board,  30  Tex.  239,  244,  94  Am.  Dec. 
301;  Woods  v.  Richardson,  117  Mass.  276;  Baldwin  v.  Carter,  17  Conn.  201, 
41'  Am.  Dec.  735.  See,  also,  In  re  Hope-Johnstone,  73  Law  J.  Ch.  321  [1904] 
1  Ch.  470,  90  Law  T.  253,  20  Times  Law  R.  282,  when,  however,  a  postnuptial 
settlement  was  involved. 

11  Becker  v.  Becker,  241  111.  423,  89  X.  E.  737,  26  L.  R.  A.  (N.  S.)  858. 

12  See  the  cases  cited  in  note  10.     And  see  Wetsel  v.  Firebaugh,  258   111. 
404,  101  N.  E.  602;   Rankin  v.  Schiereck,  166  Iowa,  10,  147  N.  W.  180.    The 
prospective   spouses   may   relinquish   their   respective   property   rights  aside 
from  the  homestead.     In  re  Adams'  Estate,  161  Iowa,  88,  140  N.   W.  872. 
Compare  Weis  v.  Bach,  146  Iowa,  320,  125  N.  "W.  211.     And  see  Swingle  v. 
Swingle,  36  N.  D.  611,  162  N.   W.  912,  holding  that  an  antenuptial  agree- 
ment relating  to  homestead  exemptions  is  void  as  contrary  to  public  policy. 
In  order  that  a  marriage  settlement  may  restrict  a  wife's  power  to  control 
and  dispose  of  her  future  acquired  property,  real  and  personal,  the  language 
of  the  instrument,  especially  since  the  Constitution  of  1868,  should  be  plain, 
and  the  intent  to  do  so  unequivocal.    Dunlap  v.  Hill,  145  N.  C.  312,  59  S.  E. 
112. 

is  Glover  v.  Bates,  1  Atk.  439;  Tarbell  v.  Tarbell,  10  Allen  (Mass.)  278; 
Adams  v.  Dickson,  23  Ga.  406;  McLeod  v.  Board,  30  Tex.  238,  94  Am.  Dec. 
301;  Crostwaight  v.  Hutchinson,  2  Bibb.  (Ky.)  407,  5  Am.  Dec.  619.  An  ante- 
nuptial contract,  whereby  the  husband  agreed  to  accept  in  relinquishment 
of  his  rights  an  income  of  $10,000  annually  on  the  death  of  his  wife,  the  in- 
come to  cease  in  the  event  of  his  marriage,  cutting  off  the  homestead  rights 
of  the  husband  and  his  statutory  one-third  interest  in  his  wife's  property, 


§  83)  ANTENUPTIAL  SETTLEMENTS  217 

his  curtesy.14  The  husband  may  agree  that  his  wife  may  retain  all 
her  own  property  to  her  sole  and  separate  use,  and  he  may  settle 
his  own  property  on  her.16  The  agreement  may  relate  to  after- 
acquired  property,16  and  the  devolution  of  the  property  of  either  or 
both  may  be  regulated.17 

Marriage  settlements  being  intended  primarily  to  guard  the  prop- 
erty interests  of  the  parties,  and  especially  to  protect  the  wife 
against  changes  in  her  husband's  fortune,  are  confined  in  their 
subject-matter  to  rights  in  property,18  and  so  far  as  property  rights 
are  concerned  the  law  does  not  regard  such  agreements  as  con- 
trary to  public  policy.  As  a  rule,  however,  aside  from  the  interest 
which  the  husband  and  wife  shall  take  in  each  other's  property, 
the  rights  and  obligations  arising  from  the  marriage  relation  can- 
not be  varied  by  agreement  between  husband  and  wife,19  or  be- 
tween both  or  either  of  them  and  third  persons.  A  husband,  for 
instance,  by  merely  agreeing  to  pay  his  wife  a  stipulated  allowance, 
cannot  always  relieve  himself  of  his  common-law  liability  to  pay 
for  her  necessaries,  if  the  allowance  is  insufficient.20  Nor  can  an  ar- 
rangement whereby  a  married  woman  lives  apart  from  her  husband, 
and  has  a  separate  maintenance  secured  to  her,  change  the  legal 
character  of  her  relations  to  her  husband,  so  as  to  enable  her  to 


is  not  prohibited  by  law,  and  is  valid.  Appleby  v.  Appleby,  100  Minn.  408, 
111  N.  W.  305,  10  L,  R,  A.  (N.  S.)  590,  117  Am.  St.  Rep.  709,  10  Ann.  Cas.  563. 

i*  Charles  v.  Andrews,  9  Mod.  151 ;  Simpson  v.  Gutteridge,  1  Madd.  609 ; 
Williams  v.  Chitty,  3  Ves.  551;  Selleck  v.  Selleck,  8  Conn.  85;  Stilley  v. 
Folger,  14  Ohio,  610;  Mines  v.  Phee,  254  111.  60,  98  N.  E.  260;  Tilton  v.  Til- 
ton,  130  Ky.  281,  113  S.  W.  131,  132  Am.  St.  Rep.  359 ;  Collins  v.  Collins,  212 
Mass.  131,  98  N.  E.  588;  Jacobs  v.  Jacobs,  42  Iowa,  600;  Naill  v.  Maurer, 
25  Md.  532. 

is  Baldwin   v.   Carter,   17  Conn.   201,   42   Am.    Dec.   735. 

i«Dunlap  v.  Hill,  145  N.  C.  312,  59  S.  E.  112;  Borland  v.  Welch,  162  N. 
T.  104,  56  N.  E.  556 ;  Cole  v.  American  Baptist  Home  Mission  Soc.,  64  N.  H.  445, 
14  Atl.  73 ;  In  re  Rds,  73  Law  J.  K.  B.  929,  [1904]  2  K.  B.  769,  91  Law  T. 
592,  53  Wkly.  Rep.  122,  11  Manson,  229,  20  Times  Law  R.  547. 

i7Davies  v.  Davies,  1  Law  J.  Ch.  (N.  S.)  31;  Hunter  v.  Bryant,  2  Wheat. 
32,  4  L.  Ed.  177;  Camp  v.  Smith,  61  Ga.  449;  Jacobs  v.  Jacobs,  42  Iowa, 
600 ;  Bank  of  Greensboro  v.  Chambers,  30  Grat.  (Va.)  202,  32  Am.  Rep.  661. 

is  Schouler,  Dom.  Rel.  (4th  Ed.)  §  171;  Isaacs  v.  Isaacs,  71  Neb.  537,  99 
N.  W.  268. 

i»  Isaacs  v.  Isaacs,  71  Neb.  537,  99  N.  W.  268;  dopton  v.  Clopton,  162 
Cal.  27,  121  Pac.  720;  Christian  v.  Hanks,  22  Ga.  125;  Obermayer  v.  Green- 
leaf,  42  Mo.  304. 

20  Nurse  v.  Craig,  2  Bos.  &  P.  (N.  R.)  148;  Clopton  v.  Clopton,  162  Cal. 
2.1t  121  Pac.  720;  ante,  p.  175. 


218  ANTENUPTIAL  AND  POSTNUPTIAL  SETTLEMENTS  (Ch.  6 

contract  and  be  sued  as  a  feme  sole.21  Nor  can  a  settlement  where- 
by all  a  wife's  property  is  conveyed  in  trust  for  her  separate  use,22 
nor  an  express  agreement  that  the  husband  shall  not  be  liable,23 
relieve  him  from  his  common-law  liability  for  her  antenuptial  debts. 
And  an  antenuptial  agreement  by  which  a  husband  agreed  not 
to  change  his  domicile  has  been  held  void,  as  an  attempt  to  abridge 
a  legal  right  of  the  husband  incident  to  the  marriage  status.24 

V 

MARRIAGE  AS  A  CONSIDERATION 

84.  Marriage  is  a  sufficient  consideration  to  support  an  antenuptial 
settlement. 

(a)  In  favor  of 

(1)  The  husband  and  wife  and  their  issue,  or  the  issue  of  a 

former  marriage. 

(2)  Collateral  relatives,  where  it  is  clear  that  it  was  intended 

to  provide  for  them. 

(3)  But  not  in  favor  of  mere  strangers. 

(b)  As  against 

(1)  The  settlor. 

(2)  The  settlor's  creditors,  in  favor  of  an  innocent  benefi- 

ciary, though  the  settlor  was  insolvent,  and  intended 
to  defraud  his  creditors. 

(3)  But  not  as  against  creditors  if  the  beneficiary  participat- 

ed in  the  fraudulent  intent,  or  knew  of  it. 

Nothing  is  better  settled  than  that  marriage  is  a  sufficient  con- 
sideration to  support  an  antenuptial  settlement  as  against  the  set- 
tlor.25 It  has  been  said  by  Mr.  Justice  Story  to  be  a  consideration 

21  Marshall  v.  Rutton,  8  Term  R.  545;  Prentiss  v.  Paisley,  25  Fla.  927, 
7  South.  56,  7  L.  R.  A.  640. 

2  2  Powell  v.  Manson,  22  Grat.  (Va.)  177,  193. 

23  Uarrison  v.  Trader,  27  Ark.  288. 

2*  Hair  v.  Hair,  10  Rich.  Eq.  (S.  C.)  163 ;  Isaacs  v.  Isaacs,  71  Neb.  537,  99 
N.  W.  268 ;  ante,  p.  88.  An  agreement  between  parties  about  to  be  married 
that  the  wife  shall  live  with  her  husband  at  the  home  of  his  parents  is  an 
antenuptial  contract  merged  in  the  marriage  contract  and  of  no  binding 
force.  Marshak  v.  Marshak,  115  Ark.  51,  170  S.  W.  567,  I..  R.  A.  1915E,  161, 
Ann.  Cas.  1916E,  206. 

ssVaizey,  Set.  Prop.  70;  Unger  v.  Mellinger,  37  Ind.  App.  639,  77  N.  E. 
814,  117  Am.  St.  Rep.  348 ;  Pierce  v.  Vansell,  35  Ind.  App.  525,  74  N.  E.  554 ; 
Colbert  v.  Rings,  231  111.  404,  83  N.  E.  274;  Hosmer  v.  Tiffany,  115  App. 
Div.  303,  100  N.  Y.  Supp.  707;  Graves  y.  Von  Below,  160  Mich.  408,  125  N. 


§  84)  MARRIAGE   AS  A  CONSIDERATION  219 

"of  the  highest  value,"  26  and  by  Chancellor  Kent  to  be  "the  high- 
est consideration  in  law."27  In  a  Massachusetts  case  it  was* said 
that  an  obligatory  agreement  to  marry  is  an  equally  high  consid- 
eration, not  differing  substantially  from  the  consideration  of  mar- 
riage, and  sufficient  to  support  an  antenuptial  settlement,  though 
the  settlor's  death  prevented  the  marriage.28  In  order  that  a  prom- 
ise to  marry,  not  followed  by  the  marriage  contemplated,  may  sup- 
port a  settlement,  the  settlement  must  have  been  made  in  consid- 
eration of  the  promise ;  and  the  settlement  should  show  very  clear- 
ly that  such  was  the  intention  of  the  parties,  to  authorize  a  court 
to  hold  that  the  settlement  was  not  conditional  upon  a  marriage 
actually  taking  place.  It  has  been  held  that,  where  the  agreement 
to  marry  is  rescinded  by  the  parties,  there  is  an  entire  failure  of  con- 
sideration.29 The  same  should  be  true  where  the  agreement  is  dis- 
charged by  the  death  of  one  of  the  parties. 

It  is  well  settled  that  the  marriage  will  support  a  settlement  in 
favor  of  the  husband  and  wife  and  their  issue,30  or  the  children 
of  a  former  marriage.31  It  seems  equally  well  settled  that  it  will 

W.  379;  Henry  v.  Butler,  87  Kan.  122,  123  Pac.  742;  In  re  Adams'  Estate, 
161  Iowa,  88,  140  N.  W.  872;  Ex  parte  IV^arsh,  1  Atk.  158;  Nairn  v.  Prowse, 
6  Ves.  752;  Magniac  v.  Thompson,  7  Pet.  348,  8  L.  Ed.  709;  Kroell  v.  Kroell, 
219  111.  305,  76  N.  EL  63,  4  Ann.  Cas.  801 ;  Broadrick  v.  Broadrick,  25  Pa. 
Super.  Ct.  225;  Nesmith  v.  Platt,  137  Iowa,  292,  114  N.  W.  1053.  And  see 
Appleby  v.  Appleby,  300  Minn.  408,  111  N.  W.  305,  10  L.  R.  A.  (N.  S.)  590,  117 
Am.  St.  Rep.  709,  10  Ann.  Cas.  563,  holding  that,  though  the  original  engage- 
ment of  marriage  be  absolute  and  entered  into  some  months  preceding  the 
making  and  signing  of  an  antenuptial  contract,  the  agreement  to  marry  re- 
mains a  consideration  for  that  contract,  and  sufficient  to  support  it.  An  an- 
tenuptial contract  executed  by  a  prospective  wife  alone  in  consideration  of 
marriage  and  a  specified  sum  is  not  void  merely  because  the  money  consid- 
eration was  not  paid  at  the  time  or  within  the  lifetime  of  the  husband. 
Bibelhausen  v.  Bibelhausen,  159  Wis.  365,  150  N.  W.  516. 
2  e  Magniac  v.  Thompson,  7  Pet.  348,  8  L.  Ed.  709. 

27  Sterry  v.  Arden,  1  Johns.  Ch.   (N.  Y.)   271. 

28  Smith  v.  Allen,  5  Allen  (Mass.)  454,  81  Am.  Dec.  758. 
2»Essery  v.  Cowlard,  26  Ch.  Div.   191. 

so  i  Vaizey,  Set.  Prop.  141 ;  Schouler,  Husb.  &  W.  §  349 ;  Trevor  v.  Trevor, 
1  P.  Wms.  622;  Herring  v.  Wickham,  29  Grat.  (Va.)  628,  26  Am.  Rep.  405; 
Vason  v.  Bell,  53  Ga.  416;  Tabb  v.  Archer,  3  Hen.  &  M.  (Va.)  399,  3  Am. 
Dec.  657. 

31  Gale  v.  Gale,  6  Ch.  Div.  144;  Michael  v.  Morey,  26  Md.  239,  90  Am. 
Dec.  106;  Vason  v.  Bell,  53  Ga.  416.  In  Michael  v.  Morey,  supra,  it  was 
said:  "The  consideration  of  marriage  is  a  valuable  consideration,  and  not 
only  sustains  covenants  in  favor  of  the  wife  and  the  issue  of  the  marriage, 
but  also  covenants  for  settlements  in  favor  of  children  of  a  former  marriage, 
as  a  moral  consideration.  The  children  are  regarded  as  purchasers^  They 


220  ANTENUPTIAL  AND  POSTNUPTIAL  SETTLEMENTS  (Ch.  6 

not  support  a  settlement  in  favor  of  entire  strangers.82  Whether 
it  will  support  a  settlement  in  favor  of  collateral  relatives  is  a  ques- 
tion upon  which  the  authorities  are  conflicting.  In  England,  by 
the  weight  of  authority,  the  general  rule  is  to  exclude  them.88  But 
there  are  cases  which  recognize  an  exception  to  the  general  rule, 
and  hold  that  a  settlement  will  be  supported  even  in  favor  of  collat- 
eral relatives  if  there  is  something  over  and  above  the  consideration 
flowing  from  the  immediate  parties  to  the  settlement,  from  which 
it  can  be  inferred  that  the  collateral  relatives  were  intended  to  be 
provided  for,  and  that,  if  the  provision  in  their  behalf  had  not  been 
agreed  to,  the  superadded  consideration  would  not  have  been  giv- 
en.8* This  exception,  and  even  a  broader  one,  it  seems,  has  been 
recognized  by  the  Supreme  Court  of  the  United  States,  in  Neves 
v.  Scott,85  where  is  is  said,  after  reviewing  some  of  the  English 
cases :  "The  result  of  all  the  cases,  I  think,  will  show  that  if,  from 
the  circumstances  under  which  the  marriage  articles  were  entered 
into  by  the  parties,  or  as  collected  from  the  face  of  the  instrument 
itself,  it  appears 'to  have  been  intended  that  the  collateral  relatives, 
in  a  given  event,  should  take  the  estate,  and  a  proper  limitation 
to  that  effect  is  contained  in  them,  a  court  of  equity  will  enforce  the 
trust  for  their  benefit.  They  will  not  be  regarded  as  volunteers 
outside  of  the  deed,  but  as  coming  fairly  within  the  influence  of  the 
considerations  upon  which  it  is  founded.  The  consideration  will 
extend  through  all  the  limitations  for  the  benefit  of  the  remotest 
persons  provided  for  consistent  with  law."  86 

may  enforce  the  obligations  of  the  contracting  parties,  notwithstanding  the 
nonperformance  of  mutual  stipulations  on  the  other  side,  unless  they  are 
conditional  and  dependent  covenants.  Although  the  defaulting  party  may 
not,  in  some  instances,  be  allowed  to  enforce  the  articles  specifically,  the 
children,  the  innocent  objects  of  parental  solicitude  and  care,  are  entitled  to 
all  the  benefit  of  the  uses  under  the  settlement,  notwithstanding  there  has 
been  a  failure  on  one  side.  These  reasons  include  as  well  the  issue  of  a 
former  as  a  subsequent  marriage.  There  can  be  no  equity  in  inflicting  upon 
the  only  child  of  a  former  marriage,  dependent  on  its  mother  for  support,  in 
whose  behalf  provision  was  made  in  anticipation  of  a  second  marriage,  the 
penalty  of  forfeiture,  because  of  the  subsequent  misconduct  of  her  mother." 

82  Sutton  v.  Chetwynd,  3  Mer.  249 ;  Merritt  v.  Scott,  6  Ga.  563,  50  Am. 
Dec.  365. 

sal  Vaizey,  Set.  Prop.  76,  140. 

»*  Vernon  v.  Vernon,  2  P.  Wins.  594 ;  Stephens  v.  Trueman,  1  Ves.  Sr. 
73 ;  Edwards  v.  Countess  of  Warwick,  2  P.  Wms.  171.  See  Neves  v.  Scott,  9 
How.  196,  13  L.  Ed.  102. 

so  9  How.  196,  13  L.  Ed.  102 ;    13  How.  268,  14  L.  Ed.  140. 

se  And  see  Tabb  v.  Archer,  3  Hen.  &  M.  (Va.)  399,  3  Am.  Dec.  657;   Hos- 


§  84)  MARRIAGE  AS  A   CONSIDERATION  221 

As  Against  Creditors 

The  statute  of  13  Eliz.  c.  5,  provides  that  all  conveyances  and  dis- 
positions of  property,  real  or  personal,  made  with  the  intent  to  de- 
lay, hinder,  or  defraud  creditors,  shall  be  void  as  against  them ; 
and  the  statute  of  27  Eliz.  c.  4,  declares  void  all  conveyances  of 
real  property  made  with  the  intent  of  defeating  subsequent  purchas- 
ers. These  statutes  are  merely  declaratory  of  the  common  law,37 
and  have  been  thus  accepted  in  some  of  our  states,  while  in  others 
they  have  been  expressly  adopted  by  statute,  or  re-enacted.88  Both 
of  these  statutes  contain  provisos  that  nothing  therein  contained 
shall  defeat  any  estate  or  interest  made  on  good  consideration,  and 
bona  fide  to  any  person  not  having  at  the  time  notice  of  any  fraud- 
ulent purpose. 

Since  marriage  is  a  valuable  consideration,  antenuptial  settle- 
ments are  not  fraudulent  as  against  creditors  and  purchasers,  un- 
der these  statutes,  where  they  are  made  in  favor  of  innocent  parties. 
A  marriage  settlement,  even  of  all  of  the  settlor's  property,  in  favor 
of  the  husband  or  wife  and  their  issue,  will  always  be  supported 
as  against  creditors  of  the  settlor  or  purchasers,  if  the  beneficiaries 
are  innocent  of  any  fraud ;  and  it  can  make  no  difference  that  the 
settlor  was  insolvent,  or  his  intent  fraudulent,  if  the  beneficiaries 
are  innocent.89  A  settlement  by  a  husband  in  favor  of  his  wife 
has  been  upheld  as  against  his  creditors  notwithstanding  false  re- 
citals that  the  property  was  the  wife's,  because  it  did  not  appear 
that  she  knew  that  his  circumstances  were  such  as  to  make  the 
settlement  a  fraud  on  any  one.40.  As  has  been,  said  by  Mr.  Justice 
Story:  "Nothing  can  be  clearer,  both  upon  principle  and  author- 
ford  v.  Howe,  41  Minn.  245,  42  N.  W.  1018 ;  Cole  v.  American  Baptist  Home 
Mission  Soc.,  64  N.  H.  445,  14  Atl.  73. 

3^4  Kent,  Comm.  462,  May,  Fraud.  Conv.  3;  Rickards  v.  Attorney  Gen- 
eral, 12  Clark  &  F.  30,  42;  Hamilton  v.  Russell,  1  Cranch,  309,  2  L.  Ed. 
118. 

884  Kent,  Comm.  463;   May,  Fraud.  Cony.  2. 

39  Campion  v.  Cotton,  17  Ves.  272;    Magniac  v.  Thompson,  7  Pet.  367,  8  L. 
Ed.  709 ;    Herring  v.  Wickham,  29  Grat.  (Va.)  628,  26  Am.  Rep.  405 ;    Sterry 
v.  Arden,  1  Johns.  Ch.  (N.  Y.)  261;    Smith  v.  Allen,  5  Allen  (Mass,)  454,  81 
Am.  Dec.  758;    Andrews  v.  Jones,  10  Ala.  400;    Jones'  Appeal,  62  Pa.  324; 
Bunnel  v.  Wibherow   29  Ind.  123 ;   Prewit  v.  Wilson,  103  U.  S.  22,  26  L.  Ed. 
360;   Bridge  v.  Eggleston,  14  Mass.  245,  7  Am.  Dec.  209;    Nance  v.  Nance,  84 
Ala.  375,  4  South.  699,  5  Am.  St.  Rep.  378;    Bumgardner  v.  Harris,  92  Va. 
188,  23  S.  E.  229;    Boggess  v.  Richards'  Adm'r,  39  W.  Va.  567,  20  S.  E.  599, 
26  L.  R.  A.  537,  45  Am.  St.  Rep.  938 ;   Hosmer  v.  Tiffany,  115  App.  Div.  303, 
100  N.  Y.  Supp.  797. 

40  Campion  v.  Cotton,  17  Ves.  272. 


222  ANTENUPTIAL  AND  POSTNUPTIAL  SETTLEMENTS  (Ch.  6 

ity,  than  the  doctrine  that  to  make  an  antenuptial  settlement  void, 
as  a  fraud  upon  creditors,  it  is  necessary  that  both  parties  should 
concur  in,  or  have  cognizance  of,  the  intended  fraud.  If  the  settlor 
alone  intend  a  fraud,  and  the  other  party  have  no  notice  of  it,  but 
is  innocent  of  it,  she  is  not,  and  cannot  be,  affected  by  it.  Mar- 
riage, in  contemplation  of  the  law,  is  not  only  a  valuable  consid- 
eration to  support  such  a  settlement,  but  is  a  consideration  of  the 
highest  value;  and,  from  motives  of  the  soundest  policy,  is  up- 
held with  a  steady  resolution.  The  husband  and  wife,  parties  to 
such  a  contract,  are  therefore  deemed,  in  the  highest  sense,  pur- 
chasers for  a  valuable  consideration ;  and  so  that  it  is  bona  fide, 
and  without  notice  of  fraud  brought  home  to  both  sides,  it  be- 
comes unimpeachable  by  creditors."  41  It  can  make  no  difference, 
in  so  far  as  the  validity  of  an  antenuptial  settlement  by  a  husband 
on  his  wife  and  children  is  concerned,  that,  before  the  settlement 
and  marriage,  he  lived  with  the  woman  in  fornication.42 

If  in  any  case,  on  the  other  hand,  there  is  an  intent  both  on  the 
part  of  the  settlor  and  of  the  beneficiary  to  delay  and  defraud 
creditors,  or  if  there  is  such  an  intent  on  the  part  of  the  settlor, 
and  the  beneficiary  knows  of  it,  the  settlement  will  not  be  upheld.43 
"Fraud  may  be  imputable  to  the  parties  either  by  direct  co-opera- 
tion in  the  original  design  at  the  time  of  its  concoction,  or  by 
constructive  co-operation  from  notice  of  it,  and  carrying  the  design, 
after  such  notice,  into  execution."44  Of  course  an  antenuptial 
agreement  that  the  wife's  property  shall  remain  hers  is  not  defeated 
by  the  fact  that  the  object  of  the  agreement  is  to  defeat  the  hus- 
band's creditors.48 

«  Magniac  v.  Thompson,  7  Pet.  348,  393.  8  L.  Ed.  709.  See,  also,  Mc- 
Knight  v.  Kingsley,  48  Ind.  App.  372,  92  N.  E.  743;  J.  P.  Leininger  Lumber 
Co.  v.  Dewey,  86  Neb.  659,  126  N.  W.  87,  21  Ann.  Cas.  471. 

42  Courts  v.  Greenhow,  2  Munf.  (Va.)  363,  5  Am.  Dec.  472,  reversing  Green- 
how  v.  Coutts,  4  Hen.  &  M.  (Va.)  485.  And  see  Herring  v.  Wickham,  29  Grat. 
(Va.)  628,  26  Am.  Rep.  405. 

* 3  Magniac  v.  Thompson,  7  Pet.  348,  8  L.  Ed.  709;  Davidson  v.  Graves, 
Riley,  Eq.  (S.  C.)  232;  Colombine  v.  Penhall,  1  Smale  &  Giff.  228,  257;  Bul- 
mer  v.  Hunter,  L.  R.  8  Eq.  46. 

44  Per  Story,  J.,  in  Magniac  v.  Thompson,  7  Pet.  at  page  394,.  8  L.  Ed.  709. 

45  Baldwin  v.  Carter,  17  Conn.  201,  42  Am.  Dec.  735. 


§  85)  REASONABLENESS   OF  PROVISION   FOR    WIFE  223 


REASONABLENESS  OF  PROVISION  FOR  WIFE 

85.  An  antenuptial  agreement  by  which  the  wife  releases  her  rights 
in  the  husband's  property  must  be  accompanied  by  the 
utmost  good  faith  and  free  from  fraud  on  the  part  of  the 
husband,  and  the  provision  for  the  wife  must  be  reason- 
ably proportionate  to  the  means  of  the  husband. 

As  antenuptial  settlements  are  intended  primarily  to  protect  the 
wife  and  children  against  want  from  the  possible  loss  or  dissipation 
of  the  property  of  the  husband,  it  is  essential  that  the  agreement  by 
which  the  wife  releases  her  rights  in  the  husband's  property  in 
consideration  of  a  provision  for  her  benefit  should  be  characterized 
by  the  utmost  good  faith,46  free  from  fraud  on  the  part  of  the 
husband,47  and  the  provision  for  the  wife  should  be  reasonably 
proportionate  to  the  means  of  the  husband.48  The  courts  will 

* e  in  re  Kline's  Estate,  64  Pa.  122;  Achilles  v.  Achilles,  137' 111.  589,  28 
N.  E.  45 ;  Bierer's  Appeal,  92  Pa.  265. 

47  Murdock  v.  Murdock,  121  111.  App.  429;  Ellis  v.  Ellis,  1  Term.  Ch.  App. 
198;  In  re  Deller's  Estate,  141  Wis.  255,  124  N.  W.  278,  25  L.  R.  A.  (N. 
S.)  751 ;  Stansberry  v.  Stansberry,  102  Neb.  489,  167  N.  W.  563 ;  Tilton  v.  Til- 
ton,  130  Ky.  281,  113  S.  W.  134,  132  Am.  St.  Rep.  359;  Maze's  Ex'rs  v. 
Maze,  99  S.  W.  336,  30  Ky.  Law  Rep.  679;  Pierce  v.  Pierce,  71  N.  Y.  154, 
27  Am.  Rep.  22. 

*  s  Murdock  v.  Murdock,  219  111.  123,  76  N.  E.  57;  Ellis  v.  Ellis,  1  Tenn. 
Ch.  App.  198;  Tiernan  v.  Binns,  92  Pa.  248;  Colbert  v.  Rings,  231  111.  404, 
83  N.  E.  274;  Watson  v.  Watson,  104  Kan.  578,  180  Pac.  242,  182  Pac.  643; 
Stephens  v.  Stephens,  181  Ky.  480,  205  S.  W.  573 ;  Gaines  v.  Games'  Adm'r, 
163  Ky.  260,  173  S.  W.  774;  Slingerland  v.  Slingerland,  115  Minn.  270,  132 
N.  W.  326 ;  In  re  Haberman's  Estate,  239  Pa.  10,  86  Atl.  641.  An  antenup- 
tial contract  is  not  invalid  merely  because  the  wife  does -not  receive  there- 
under as  much  as  she  would  if  there  were  no  contract.  Landes  v.  Landes, 
268  111.  11,  108  N.  E.  691.  Disproportion  to  husband's  means  will  not  render 
contract  invalid,  where  wife  knew  of  the  extent  of  the  husband's  property. 
Yockey  v.  Marion,  269  111.  342,  110  N.  E.  34.  To  the  same  effect  see  Gordon 
v.  Munn,  87  Kan.  624,  125  Pac.  1,  Ann.  Cas.  1914A,  783,  rehearing  denied 
88  Kan.  72,  127  Pac.  764,  Ann.  Cas.  1914A,  783.  An  antenuptial  contract, 
whereby  neither  the  husband  nor  the  wife  was  to  claim  the  property  of 
the  other  at  the  other's  death,  is  not  so  disproportionate  and  unreasonable 
as  to  raise  the  presumption  of  fraud.  Watson  v.  Watson,  104  Kan.  578,  180 
Pac.  242,  182  Pac.  643.  In  construing  an  antenuptial  contract,  the  court 
should  have  regard  to  the  interests  of  the  children  of  the  contracting  par- 
ties living  at  the  time  it  was  entered  into  in  determining  whether  the  con- 
tract is  reasonable  and  fair  to  the  wife.  In  re  Hubinger's  Estate,  150  Iowa, 
307,  130  N.  W.  155. 

There  was  too  great  disproportion  where  wife  was  to  have  only  $1,000 


224  ANTENUPTIAL  AND  POSTNUPTIAL  SETTLEMENTS  (Ch.  6 

rigidly  scrutinize  an  antenuptial  contract,  apparently  unjust,  which 
deprives  the  wife  of  any  interest  in  her  husband's  estate  without 
providing  for  her  if  she  survives  him,48  and  if  any  of  the  essentials 
of  good  faith  are  lacking,  the  settlement  may  be  set  aside  in 
equity.80 

The  parties  to  an  antenuptial  contract  do  not  deal  at  arm's 
length,51  but  they  occupy  a  confidential  relation  to  each  other.52 
It  is,  therefore,  essential  that  the  contract  be  entered  into  with 
full  knowledge  of  all  that  may  materially  affect  it.03  If  the  pro- 
vision secured  for  the  intended  wife  is  disproportionate  to  the 

out  of  an  estate  of  $30,000.  Stephens  v.  Stephens,  181  Ky.  480,  205  S.  W. 
573.  And  where  she  would  have  only  a  small  farm,  the  husband  being 
worth  $200,000.  Shirey  v.  Shirey,  87  Ark.  175,  112  S.  W.  369.  And  where 
wife  would  receive  $500  a  year  during  husband's  life  and  $10,000  at  his  death, 
the  husband  being  worth  $130,000.  Warner  v.  Warner,  235  111.  448,  85  N.  E. 
630.  But  see  In  re  Deller's  Estate,  141  Wis.  255,  124  N.  W.  278,  25  L.  R.  A. 
(N.  S.)  751,  holding  that  where  an  antenuptial  agreement  made  a  provi- 
sion of  $5,000  for  the  prospective  wife  out  of  the  husband's  estate  at  his 
death,  and  the  estate  amounted  to  $85,000,  the  provision  would  not  be  so 
inadequate  as  to  render  the  agreement  unenforceable,  because  of  the  mere 
insufficiency  of  the  provisions  made  for  the  intended  wife. 

*9In  re  Eny art's  Estate,  100  Neb.  337,  160  N.  W.  120;  In  re  Deller's  Es- 
tate, 141  Wis.  255,  124  N.  W.  278,  25  L.  R.  A.  (N.  S.)  751;  Bibelhausen  7. 
Bibelhausen,  159  Wis.  365,  150  N.  W.  516. 

so  Kline  v.  Kline,  57  Pa.  120,  98  Am.  Dec.  206;  Pierce  v.  Pierce,  71  N.  Y. 
154,  27  Am.  Rep.  22;  Peaslee  v.  Peaslee,  147  Mass.  171,  17  N.  E.  506;  Con- 
nor v.  Stanley,  72  Cal.  556,  14  Pac.  306,  1  Am.  St.  Rep.  84 ;  Ellis  v.  Ellis,  1 
Tenn.  Ch.  App.  198.  In  the  absence  of  fraud,  it  is  not  ground  to  set  aside 
a  settlement  that  the  wife  was  not  fully  informed  as  to  her  legal  rights. 
Robbins  v.  Robbins,  225  111.  333,  80  N.  E.  326,  9  L.  R.  A.  (N.  S.)  953.  A  settle- 
ment will  not  be  set  aside  on  the  ground  of  mistake  because  it  contained  no 
provision  for  revocation.  Crumlish  v.  Security  Trust  &  Safe  Deposit  Co.,  8 
Del.  Ch.  375,  68  Atl.  388. 

si  Pierce  v.  Pierce,  71  N.  Y.  154,  27  Am.  Rep.  22;  Maze's  Ex'rs  v.  Maze, 
99  S.  W.  336,  30  Ky.  Law  Rep.  679;  Bierer's  Appeal,  92  Pa.  265. 

szAchilles  v.  Achilles,  137  111.  589,  28  N.  E.  45;  Pierce  v.  Pierce,  71  N. 
Y.  154,  27  Am.  Rep.  22 ;  Martin  v.  Collison,  266  111.  172,  107  N.  E.  257 ;  SPUR- 
LOCK  v.  BROWN,  91  Tenn.  241, 18  S.  W.  868,  Cooley  Cas.  Persons  and  Domes- 
tic Relations,  113;  Tiernan  v.  Binns,  92  Pa.  248;  Nesmith  v.  Platt,  137  Iowa, 
1".)-,  114  N.  W.  1053,  holding  that  the  parties  to  an  antenuptial  agreement 
do  not  occupy  any  such  relation  of  trust  toward  each  other  as  to  call  for 
affirmative  proof  of  the  fairness  of  the  agreement  when  contested  by  the 
wife  after  the  death  of  the  husband. 

53  Warner  v.  Warner,  235  111.  448,  85  N.  E.  630;  Murdock  v.  Murdock, 
121  111.  App.  429;  Gaines  v.  Games'  Adm'r,  163  Ky.  260,  173  k  W.  774; 
Stratton  v.  Wilson,  170  Ky.  61,  185  S.  W.  522,  Ann.  Cas.  1918B,  917;  In 
re  Enyart's  Estate,  100  Neb.  337,  160  N.  W.  120  (holding  that  the  fact  that 
the  prospective  wife  knows  in  a  general  way  that  the  husband  is  reputed 
wealthy  is  not  sufficient  to  satisfy  the  requirement  as  to  fair  disclosure). 


§  86)    SETTLEMENTS  BASED  ON  ANTENUPTIAL  AGREEMENTS      225 

means  of  the  intended  husband,  it  raises  a  presumption  of  fraud 
or  concealment,  throwing  upon  those  claiming  in  the  husband's 
right  the  burden  of  disproving  the  same.54 

In  determining  the  fairness  and  reasonableness  of  the  provision 
for  the  wife,  the  wealth  of  the  husband,  the  existing  means  of  the 
wife,  and  the  age  of  the  parties  may  be  considered.55 


86.  The  consideration  of  marriage  supports  a  settlement  made  aft- 
er marriage,  if  in  pursuance  of  a  valid  antenuptial  agree- 
ment in  compliance  with  the  statute  of  frauds. 

A  settlement,  though  not  made  until  after  marriage,  is  support- 
ed by  the  consideration  of  marriage  as  fully  as  if  made  before 
marriage,  if  it  is  made  in  pursuance  of  a  valid  antenuptial  agree- 
ment.56 Prior  to  the  enactment  of  the  statute  of  frauds,  which,  as 
will  presently  be  seen,  requires  all  agreements  in  consideration  of 
marriage  to  be  in  writing,57  it  was  held  that  a  settlement  made  aft- 
er marriage,  in  pursuance  of  an  antenuptial  agreement,  was  valid, 

04  Taylor  v.  Taylor,  144  111.  436,  33  N.  E.  532;  Murdock  v.  Murdock,  219 
111.  123,  76  N.  E.  57;  Achilles  v.  Achilles,  151  111.  136,  37  N.  E.  693;  Hes- 
sick  v.  Hessick,  169  111.  486,  48  N.  E.  712;  Mines  v.  Phee,  254  111.  60,  98 
N.  E.  260 ;  Landes  v.  Landes,  268  111.  11,  108  N.  E.  691 ;  Rankin  v.  Schiereck, 
166  Iowa,  10,  147  N.  W.  180;  Bibelhausen  v.  Bibelhausen,  159  Wis.  365,  150 
N.  W.  516 ;  Bierer's  Appeal,  92  Pa.  265 ;  SPURLOCK  v.  BROWN,  91  Tenn.  241, 
18  S.  W.  868,  Cooley  Cas.  Persons  and  Domestic  Relations,  113;  McRae  v. 
Battle,  69  N.  C.  98.  But  see  In  re  Whitmer's  Estate,  224  Pa.  413,  73  Atl. 
551. 

55B~rooks  v.  Brooks'  Ex'rs  (Ky.)  58.  S.  W.  450,  22  Ky.  Law  Rep.  555; 
Neely's  Appeal,  124  Pa.  406,  16  Atl.  883,  10  Am.  St.  Rep.  594;  Hosford  v. 
Rowe,  41  Minn.  245,  42  N.  W.  1018;  Nesmith  v.  Platt,  137  Iowa,  292,  114  N. 
W.  1053.  An  antenuptial  contract  is  voidable  on  account  of  the  incapacity  of 
the  wife  by  reason  of  infancy.  Shirey  v.  Shirey,  87  Ark.  175,  112  S.  W.  369. 

s«  1  Vaizey,  Set.  Prop.  72;  Tawney  v.  Crowther,  3  Brown,  Ch.  318; 
Coles  v.  Trecothick,  9  Ves.  250;  Jason  v.  Jervis,  1  Vern.  284,  286;  Reade  v. 
Livingston,  3  Johns.  Ch.  (N.  Y.)  481,  8  Am.  Dec.  520;  Sir  Ralph  Bovy's  Case, 
1  Vent.  193 ;  Tabb  v.  Archer,  3  Hen.  &  M.  (Va.)  399,  3  Am.  Dec.  657 ;  Broad- 
rick  v.  Broadrick,  25  Pa.  Super.  Ct.  225;  Pierce  v.  Vansell,  35  Ind.  App. 
525,  74  N.  E.  554.  But  a  settlement  based  on  an  antenuptial  agreement  look- 
ing to  a  possible  separation  is  not  based  on  a  good  consideration.  Sawyer 
V.  Churchill,  77  Vt.  273,  59  Atl.  1014,  107  Am.  St.  Rep.  762. 

6  7  Post,  p. -226. 

TIFF.P.&  D.REL.(3o  ED.)— 15 


22G  ANTENUPTIAL  AND  POSTNUPTIAL  SETTLEMENTS  (Ch.  6 

though  the  agreement  was  not  in  writing.58  Since  the  enactment 
of  the  statute,  however,  all  agreements  in  consideration  of  marriage 
must  be  evidenced  by  writing  before  the  court  can  recognize  them 
as  having  any  effect ;  and  it  follows  that  an  antenuptial  agreement 
must  be  in  writing,  in  order  that  a  settlement  made  in  pursu- 
ance thereof  after  marriage  may  be  upheld.68 


STATUTE  OF  FRAUDS 

87.  Under  the  statute  of  frauds,  an  agreement  in  consideration  of 
marriage  must  be  evidenced  by  writing,  or  it  cannot  be 
proved  or  recognized  by  the  courts. 

The  statute  of  frauds  and  perjuries  (St.  29  Car.  II,  c.  3,  §  17)  pro- 
vides that  "no  action  shall  be  brought  whereby  *  *  *  to  charge 
any  person  upon  any  agreement  made  upon  consideration  of  mar- 
riage, *  *  *  unless  the  agreement  upon  which  such  action  shall 
be  brought,  or  some  memorandum  or  note  thereof,  shall  be  in  writ- 
ing, and  signed  by  the  party  to  be  charged  therewith,  or  some  other 
person  thereunto  by  him  lawfully  authorized."  This  statute  has 
been  substantially  re-enacted  in  this  country. 

The  statute  applies  to  all  agreements  for  which  a  marriage  is 
the  consideration,  such  as  a  promise  to  pay  money,  or  to  make  a 
settlement  of  property  if  a  marriage  is  consummated,  and  so  in- 
cludes marriage  settlements  or  agreements  therefor.60  The  stat- 
es Griffin  v.  Stanhope,  Cro.  Jac.  454;  Sir  Ralph  Bovy's  Case,  1  Vent.  193. 
B»  Montacute  v.  Maxwell,  1  P.  Wms.  618, 1  Strange,  236;  Dundas  v.  Dutens, 
1  Ves.  Jr.  1% ;  Reade  v.  Livingston,  3  Johns.  Ch.  (N.  Y.)  481,  8  Am.  Dec.  520 ; 
Tawney  v.  Crowther,  3  Brown,  Ch.  263;  Coles  v.  Trecothick,  9  Ves.  250; 
Lloyd  v.  Fulton,  91  U.  S.  479,  23  L.  Ed.  363;  Bradley  v.  Saddler,  54  Ga. 
681 ;  Finch  v.  Finch,  10  Ohio  St.  501 ;  Henry  v.  Henry,  27  Ohio  St.  121 ;  Flen- 
ner  v.  Flenner,  29  Ind.  569;  Izard  v.  Middelton,  Bailey,  Eq.  (S.  C.)  228. 

«o  Clark,  Cont.  101,  102;  Tawney  v.  Crowther,  3  Brown,  Ch.  263;  Coles  v. 
Trecothick,  9  Ves.  250;  Caton  v.  Caton,  1  Ch.  App.  137;  Ogden  v.  Ogden,  1 
Bland  (Md.)  284 ;  Crane  v.  Gough,  4  Md.  316 ;  Reade  v.  Livingston,  3  Johns. 
Ch.  (N.  Y.)  481,  8  Am.  Dec.  520 ;  Henry  v.  Henry,  27  Ohio  St  121 ;  Finch  v. 
Finch,  10  Ohio  St.  507 ;  Flenner  v.  Flenner,  29  Ind.  564 ;  Caylor  v.  Roe,  99 
Ind.  1 ;  Lloyd  v.  Fulton,  91  U.  S.  479,  23  L.  Ed.  363 ;  Deshon  v.  Wood,  148 
Mass.  132,  19  N.  E.  1,  1  L.  R.  A.  518;  Hammond  v.  Hammond,  135  Ga.  768, 
70  S.  E.  588 ;  McCartney  v.  Titsworth,  142  App.  Div.  292,  126  N.  Y.  Supp.  905 ; 
Rowell  v.  Barber,  142  Wis.  304,  125  N.  W.  937,  27  L.  R.  A.  (N.  S.)  1140; 
Watkins  v.  Watkins,  82  N.  J.  Eq.  483,  89  Atl.  253,  affirmed  85  N.  J.  Eq.  217, 
95  Atl.  1079;  Chase  v.  Fltz,  132  Mass.  359;  McAnnulty  v.  McAnnulty,  120 
111.  26,  11  N.  E.  397,  60  Am.  Rep.  552 ;  Mallory's  Adm'rs  v.  Mallory's  Adm'r, 


§  87)  STATUTE   OP   FRAUDS  227 

ute,  therefore,  applies  to  an  agreement  by  a  man  and  womarv  in 
contemplation  of  marriage  that  each  shall  retain  the  title  to  his  or 
her  own  property,  and  dispose  of  it  as  if  unmarried ; 61  or  that  the 
survivor  shall  take  no  interest  in  the  property  of  the  other;62  or 
that  the  survivor  shall  take  certain  property.63 

The  memorandum  required  by  the  statute  of  frauds  does  not  go 
to  the  existence  of  the  contract,  but  is  evidence  only.  A  parol 
agreement  within  the  statute  exists.  It  simply  cannot  be  proved* 
and  is  unenforceable.  For  this  reason,  it  is  held  that  the  note  or 
memorandum  in  writing  need  not  be  made  at  the  time  the  contract 
is  made,  but  may  be  made  at  any  time  before  it  is  sought  to  en- 
force it.  This  applies  to  other  contracts  within  the  statute  of 
frauds ; 84  and  there  is  no  ground  upon  which  the  courts  are  au- 
thorized to  make  an  exception  in  the  case  of  agreements  in  con- 
sideration of  marriage.  Nevertheless  it  seems  to  be  the  rule  that  a 
verbal  agreement  in  consideration  of  marriage  is  not  taken  out  of 
the  operation  of  the  statute  by  being  reduced  to  writing  after  the 
marriage; 65  as  has  been  shown,  a  settlement  made  after  marriage, 
in  pursuance  of  a  valid  antenuptial  agreement,  is  supported  by  the 
consideration  of  marriage,  but  cannot  be  upheld  unless  there  is 
written  evidence  of  the  antenuptial  agreement,  since  the  agreement 
cannot  be  proved  by  parol.  Some  of  the  courts  have  intimated,  but 

92  Ky.  316,  17  S.  W.  737;  Hannon  v.  Hounihan,  85  Va.  429,  12  S.  B.  157; 
ante,  p.  214.  In  Larsen  v.  Johnson,  78  Wis.  300,  47  N*.  W.  615,  23  Am.  St. 
Rep.  404,  It  was  held  that  the  statute  did  not  apply  to  an  oral  agreement 
between  a  man  and  woman,  by  which  the  man  was  to  provide  for  the  com- 
fort and  support  of  the  woman  during  life,  pay  her  debts,  take  care  of, 
manage,  and  improve  certain  land,  so  as  to  make  it  productive,  and  to  that 
end  that  the  parties  should  marry  and  live  together  on  the  land,  which 
should  be  conveyed  by  the  woman  to  the  man  in  fee  simple.  The  court 
thought  that  the  consideration  for  the  conveyance  of  the  land  was  the  pro- 
vision for  the  support  and  comfort  of  the  woman  and  not  the  marriage.  The 
statute  does  not  apply  to  a  promise  to  marry,  the  consideration  for  which 
is,  not  the  marriage,  but  the  promise  of  the  other  party.  Clark  v.  Pendle- 
ton,  20  Conn.  495;  Clark,  Cont.  101. 

siMallory's  Adm'rs  v.  Mallory's  Adm'r,  92  Ky.  316,  17  S.  W.  737. 

82  Carpenter  v.  Comings,  51  Hun,  638,  4  N.  Y.  Supp.  947. 

63  Hannon  v.  Hounihan,  85  Va.  429,  12  S.  E.  157.  And  see  White  v.  Bige- 
low,  154  Mass.  593,  28  N.  E.  904;  Adams  v.  Adams,  17  Or.  247,  20  Pac.  633. 

«4  Clark,  Cont.  116,  128,  and  cases  there  cited. 

85  Adams  v.  Swift,  169  App.  Div.  802,  155  N.  Y.  Supp.  873 ;  Rowell  v.  Bar- 
ber, 142  Wis.  304,  125  N.  W.  937,  27  L.  R.  A.  (N.  S.)  1140;  McAnnulty  v. 
McAnnulty,  120  111.  26, 11  N.  E.  397,  60  Am.  Rep.  552 ;  Frazer  v.  Andrews,  134 
Iowa,  621,  112  N.  W.  92,  11  L.  R.  A.  (N.  S.)  593,  13  Ann.  Gas.  556;  London 
v.  G.  L.  Anderson  Brass  Works,  197  Ala.  16,  72  South.  359. 


A.NTI'M  1'TIAL  AND   POSTNUPTIAL   SETTLEMENTS  (Cll.  0 

not  decided,  that  it  is  not  sufficient  in  these  cases  for  the  written 
nee  of  the  antenuptial  agreement  to  be  supplied  by  recitals  in 
tin-  instrunu'iit  l>y  which  the  settlement  in  pursuance  thereof  is 
made  after  maniagc."  Under  the  principle  stated  above,  however, 
siu-li  a  nvital  may  In-  sufficient.117 

The  note  or  memorandum  in  writing  required  by  the  statute  need 
not  hi-  a  formal  written  agreement.  Any  writing  which  shows  all 
(lu-  terms  of  the  agnvnu-nt.  the  subject-matter,  and  the  parties,  and 
which  is  signed  by  the  party  to  be  charged,  or  his  or  her  duly 
authorized  agent,  is  sufficient,  since  written  evidence  of  the  agree- 
ment is  all  that  is  required.  There  is  no  difference  in  this  respect 
between  this  kind  of  an  agreement  and  any  other  agreement  witMn 
the  statute."  In  a  late  case,  a  letter  to  a  mother,  proposing  to 
marry  her  daughter,  shown  to  the  latter,  and  stating  that  the  writer 
would  convey  certain  land  to  the  daughter  when  they  should  be 
married,  was  held  a  sufficient  memorandum  of  the  agreement  to 
-convey."  The  memorandum  may  consist  entirely  of  correspond- 
ence. It  may  consist  of  any  number  of  separate  papers,  provided 
the  papers  refer  to  and  identify  each  other.  The  most  informal 
kind  of  a  memorandum  will  suffice  if  it  shows  the  agreement  and  its 
terms*" 

The  marriage  of  the  parties  is  not  such  part  performance  as 
will,  even  in  equity,  take  a  parol  antenuptial  agreement  out  of  the 
operation  of  the  statute.11 

««  Dictum  in  Randall  v.  Monran.  12  Yes.  07,  and  In  Reade  v.  Livingston,  3 
John*,  Ch.  i\.  Y.)  481,  8  Am.  Dec.  51M). 

'ii-tum  In  Montacute  v.  Maxwell,  1  P.  Wins.  018,  1  Strange,  230,  and  In 
IMmdas  v.  Put  ens,  1  Ves.  Jr.  1 '.'«:. 

«•  S»v  rinrU.  Cont  114-128,  Where  the  sutHHeney  or  the  memorandum  re- 
«iniivd  l>\  iht>  statute  Is  illsi-ussed  at  length,  mid  the  eases  on  tin-  siih.iivt  are 
rollivti-d. 

North  I'latte  Milling  &  Elevator  Co,  v.  1'ri.v.  I  Wyo.  293,  33  Pac.  664. 

•"  llaiuimTsh-y   v.    lh>   Kiel.    1'J   Clark   .  ("lark.   Cont.   114. 

•Ulamu'ii  v.  llomiihan.  S.">  \':i.  »-!>.  PJ  S.  !•:.  1T.7;  .lulinslono  v.  Mjippin. 
(H)  l.:i\v  .1.  Ch.  '-'U:  Fl.MiiuM-  v.  Fl.Miii.-r.  L'O  hid.  .'(M ;  Hammond  v.  Ham- 
mond. i:::>  Cn.  7C»S.  ,  ,,SS;  WatUins  v.  WiitUins.  S'J  N.  .1.  i 
All.  I.':.:;,  atUnm-d  sr.  N.  .1.  li.i  -17..  05  Atl.  107'.);  MMiinlns  v.  Kil.-y.  .VJ  N.  .1. 
Kq.  :::>.  L'7  \\\.  SU>.  The  e\«vution  of  :i  dei-d  pin-suaiit  to  an  oral  antennptinl 
agreement  and  deposit  thereof  to  t)ik«-  elYtvt  on  his  death  is  such  lu-n'orm- 
nnee  as  will  lak.-  ih.-  aun-fiiu-nt  «'ui  of  l!u-  statuti-  Of  frauds.  Ko\\i-!l  v. 
-,  1IL>  Wis.  :50-l,  TJ5  N.  W.  W7.  1*7  L.  H.  A  1140. 


§§  88-90)  POSTNUPTIAL  SETTLEMENTS  229 

POSTNUPTIAL  SETTLEMENTS 

88.  At  common  law,  contracts,  gifts,  and  conveyances,  made  be- 

tween husband  and  wife  directly  and  without  the  interven- 
tion of  trustees  or  third  persons,  are  void. 

89.  In  equity,  the  common-law  rule  does  not  apply  fully ;  but 

(a)  Contracts   between  husband  and  wife  will  be  supported, 

where  they  would  be  good  at  law  if  made  with  trustees  for 
the  wife. 

(b)  Gifts  by  the  husband  to  the  wife  are  good  as  between  the 

parties,  where  there  is  an  irrevocable  gift  to  some  person 
as  trustee  for  the  wife,  or  where  the  husband  divests  him- 
self of  the  property,  and  agrees  to  hold  as  trustee  for  the 
wife. 

(c)  Conveyances  by  the  husband  directly  to  the  wife  are  good  as 

between  the  parties,  when  a  just  and  reasonable  provision 
for  the  wife. 

90.  Under  modern  statutes  removing  the  disabilities  of  coverture,  in 

many  states  contracts,  gifts,  and  conveyances  made  be- 
tween husband  and  wife,  directly  and  without  the  inter- 
vention of  trustees  or  third  persons,  are  valid. 

Postnuptial  settlements  include  not  only  formal  settlements  made 
by  husband  or  wife  or  third  persons,  but  also  all  transfers  of  real 
or  personal  property  made  between  husband  and  wife. 

At  Common  Law 

By  reason  of  the  common-law  idea  of  the  unity  of  husband  and 
wife,  they  cannot,  at  common  law,  enter  into  any  valid  contract 
with  each  other.7 *  Nor,  apparently  for  the  same  reason,  does  the 
common  law  recognize  as  having  any  validity  whatever,  even  as  be- 
tween the  parties  themselves,  a  gift  of  personal  property,78  or  a 
conveyance  of  real  property,74  directly  between  husband  and  wife. 
Such  a  gift  or  conveyance  is  a  mere  nullity.  "If  any  principle  of 

72  Barren  v.  Barron,  24  Vt.  875;  Lister  v.  Lister,  86  N.  J.  Eq.  80,  97  Att. 
170.  And  see  ante,  p.  159. 

"  Co.  Lltt.  1871) ;  Kitchen  v.  Bedford,  18  Wall.  413,  20  L.  Ed.  637;  Manny 
v.  Rlxford,  44  111.  129. 

T*  Co.  Lltt.  187b,  8a,  112a ;  Beard  v.  Beard,  8  Atk.  72 ;  Phillips  r.  Barnet, 
1  Q.  B.  Div.  440;  Voorhees  v.  Presbyterian  Church,  17  Barb.  (N.  Y.)  108; 
Martin  v.  Martin,  1  Greonl.  (Mo.)  394 ;  Williams  v.  Belts  (Del.  Oh.)  98  All.  871 ; 
Edgerly  v.  Whalan,  100  Mass.  307. 


230  ANTENUPTIAL  AND   POSTNUPTIAL   SETTLEMENTS  (Ch.  6 

common  law  is  settled  and  perfectly  at  rest,  it  seems  to  be  this : 
that  a  husband  cannot  convey  an  estate  by  deed  to  his  wife."  75 
It  is  equally  well  settled  that  a  wife  cannot  at  common  law  make  a 
conveyance  directly  to  her  husband,  nor  can  they  effect  this  pur- 
pose by  joining  in  a  deed  to  him.76 

Of  course,  even  at  common  law,  a  husband  can  make  a  valid  corn- 
tract  with  trustees,  or  a  valid  gift  of  personalty  or  conveyance 
of  real  property  to  trustees  for  the  benefit  of  his  wife,  provided  he 
does  not  commit  a  fraud  upon  his  creditors.  The  device  by  which 
a  husband  usually  conveyed  land  to  his  wife  at  common  law  was 
by  conveying  it  to  some  third  person,  and  having  him  convey  to 
the  wife.  Such  conveyances  are  valid.77  By  a  similar  circuity, 
a  wife  could  convey  her  land  to  her  husband.  While  she  could 
not  convey  to  him  directly,  either  by  executing  the  conveyance 
alone  or  by  joining  with  him  in  a  conveyance,  they  could  accom- 
plish the  purpose  by  joining  in  a  conveyance  to  a  third  person,  and 
having  the  grantee  reconvey  to  the  husband.78  In  such  cases  the 
wife  must  have  acted  freely,  and  not  under  coercion  or  undue  in- 
fluence by  the  husband.79  There  is  no  presumption  of  undue  in- 
fluence,80 but  the  cpurt  will  scrutinize  the  transaction  closely,  and, 
if  any  undue  influence  appears  to  have  been  exercised,  set  the 
conveyances  aside. 
In  Equity 

The  rule  in  equity  does  not  follow  the  common  law.  In  some 
cases  a  court  of  equity  will  recognize  and  enforce  contracts  and 
conveyances  entered  into  directly  between  husband  and  wife, 
without  the  intervention  of  trustees.  The  general  rule,  as  laid 
down  by  the  Vermont  court,  is  that,  whenever  a  contract  would  be 
good  at  law  if  made  with  trustees  for  the  wife,  it  will  be  sustained 
in  equity,  though  made  without  the  intervention  of  trustees.81  So, 

"  Martin  v.  Martin,  1  Greenl.  (Me.)  394. 

™  White  v.  Wager,  25  N.  Y.  328;  Winans  v.  Peebles,  32  N.  T.  423;  Sims 
v.  Rickets,  35  Ind.  181,  9  Am.  Rep.  679;  Bailey  v.  Apperson,  134  Tenn.  716, 
185  S.  W.  710;  Elder  v.  Elder,  256  Pa.  139,  100  Atl.  581;  Scarborough  v. 
Watkins,  9  B.  Mon.  (Ky.)  540,  50  Am.  Dec.  528. 

"  Scarborough  v.  Watkins,  9  B.  Mon.  (Ky.)  540,  50  Am.  Dec.  528. 

™  Scarborough  v.  Watkins,  9  B.  Mon.  (Ky.)  540,  50  Am.  Dec.  528;  Young 
v.  Brown,  136  Tenn.  184,  188  S.  W.  1149. 

™  Jackson  v.  Stevens,  16  Johns.  (N.  Y.)  110;  Shepperson  v.  Shepperson, 
2  Grat.  (Va.)  501. 

«o  Scarborough  v.  Watkins,  9  B.  Mon.  (Ky.)  540,  50  Am.  Dec.  528. 

«i  Barren  v.  Barren,  24  Vt.  375.     And  see  2  Story,  Eq.  Jur.  §  1372;    2 


§§  88-90)  POSTNUPTIAL   SETTLEMENTS  231 

in  equity,  a  gift  or  conveyance  by  the  husband  directly  to  the  wffe 
will  be  upheld,  in  certain  cases,  by  holding  the  husband  as  trustee 
for  the  wife.  Equity  will  uphold  a  clear,  irrevocable  gift  by  a  hus- 
band to  his  wife,  either  with  or  without  the  intervention  of  trus- 
tees ; 82  but  the  gift  must  be  clear  and  complete.  It  is  not  sufficient 
to  show  an  intention  to  give,  but  the  intention  must  have  been 
carried  into  effect.83 

In  the  leading  case  of  Wallingsford  v.  Allen,84  a  husband  and 
wife  having  separated,  and  alimony  having  been  decreed  against 
him,  he  gave  her,  in  discharge  thereof,  certain  personal  property. 
After  her  death  he  claimed  the  same.  The  court  said,  in  rejecting 
his  claim :  "Every  feature  of  the  agreement  is  an  appeal  to  have 
it  tested  by  those  principles  of  equity  which  have  been  applied  to 
maintain  a  separate  interest  in  women,  acquired  from  their  hus- 
bands during  coverture,  whether  the  same  were  made  by  the  inter- 
vention of  trustees  or  not,  when  the  transfer  was  fairly  made,  upon 
a  meritorious  or  valuable  consideration.  Agreements  between  hus- 

Kent,  Comm.  166 ;  Shepard  v.  Shepard,  7  Johns.  Ch.  (N.  T.)  57,  11  Am.  Dec. 
396;  Slanning  v.  Style,  3  P.  Wms.  334;  Arundell  v.  Phipps,  10  Ves.  146; 
Wallingsford  v.  Allen,  10  Pet.  583,  9  L.  Ed.  542;  In  re  Hill  (D.  C.)  190 
Fed.  390 ;  Sims  v.  Rickets,  35  Ind.  181,  9  Am.  Rep.  679 ;  Livingston  v.  Living- 
ston, 2  Johns.  Ch.  (N.  Y.)  537 ;  Maraman's  Adrn'r  v.  Maraman,  4  Mete.  (Ky.) 
88;  Putnam  v.  Bicknell,  18  Wis.  333;  Huber  v.  Huber's  Adin'r,  10  Ohio,  371; 
Simmons  v.  McElwain,  26  Barb.  (N.  Y.)  419;  Wilder  v.  Brooks,  10  Minn.  50 
(Gil.  32),  88  Am.  Dec.  49;  Stocket  v.  Holliday,  9  Md.  480;  Bowie  v.  Stone- 
street,  6  Md.  418,  61  Am.  Dec.  318.  While  law  courts  will  not  enforce  a 
contract  between  husband  and  wife,  equity  will  do  so  when  the  contract 
is  fair  or  for  the  benefit  of  the  wife.  McDonald  v.  Smith,  95  Ark.  523,  130  S. 
W.  515;  Brown  v.  Clark,  80  Conn.  419,  68  Atl.  1001;  Lister  v.  Lister,  86 
N.  J.  Eq.  30,  97  Atl.  170. 

82  Lewin,  Trusts,  68 ;    2  Story,  Eq.  Jur.  §  1375 ;    Lucas  v.  Lucas,  1  Atk. 
270;    Hutchins  v.  Dixon,  11  Md.  29;    Wallingsford  v.  Allen,  10  Pet.  583,  9 
L.  Ed.  542;    McLean  v.  Longlands,  5  Ves.  78;   Mews  v.  Mews,  15  Beav.  529; 
Deming  v.  Williams,  26  Conn.  226,  68  Am.  Dec.  386;    Dilts  v.  Stevenson,  17 
N.  J.  Eq.  407 ;    West  v.  Burke,  165  App.  Div.  667,  151  N.  Y.  Supp.  329,  af- 
firmed 219  N.  Y.  7,  113  N.  E.  561 ;   Grant  v.  Grant,  34  Law  J.  Ch.  641. 

83  Cotteen  v.  Missing,  1  Madd.  176;    Kekewich  v.  Manning,  1  De  Gex,  M. 
&  G.  188:    Jennings  v.  Davis,  31  Conn.  134;    George  v.  Spencer,  2  Md.  Ch. 
353.     In  Grant  v.  Grant,  34  Law  J.  Ch.  641,  it  was  held  that  delivery  is 
not  necessary,  for  possession  of  the  wife  is  that  of  her  -husband,  and  that 
present  words  of  gift,  without  any  further  act,  are  sufficient  in  equity  to  con- 
stitute the  husband  trustee  for  the  wi£e.     But  in  Re  Breton's  Estate,  17 
Ch.  Div.  416,  it  was  held  that  such  a  gift  could  not  be  supported;    that 
this  was  an  attempt  to  make  a   legal   transfer,   and   therefore,  under  the 
rule  of  Milroy  v.  Lord,  8  Jur.  (N.  S.)  809,  it  could  not  operate  as  a  declara- 
tion of  trust.    See,  also,  In  re  Pierce,  7  Biss.  426,  Fed.  Cas.  No.  11,139. 

s*  10  Pet.  583,  9  L.  Ed.  542. 


232  ANTENUPTIAL  AND  POSTNUPTIAL  SETTLEMENTS  (Ch.  6 

band  and  wife,  during  coverture,  for  the  transfer  from  him  of  prop- 
erty directly  to  the  latter,  are  undoubtedly  void  at  law.  Equity  ex- 
amines with  great  caution  before  it  will  confirm  them.  But  it  does 
sustain  them  when  a  clear  and  satisfactory  case  is  made  out  that 
the  property  is  to  be  applied  to  the  separate  use  of  the  wife.  Where 
the  consideration  for  the  transfer  is  a  separate  interest  of  the  wife, 
yielded  up  by  her  for  the  husband's  benefit,  or  of  their  family, 
or  which  has  been  appropriated  by  him  to  his  uses;  where  the 
husband  is  in  a  situation  to  make  a  gift  of  property  to  the  wife, 
and  distinctly  separates  it  from  the  mass  of  his  property  for  her 
use, — either  case  equity  will  sustain,  though  no  trustee  has  been 
interposed  to  hold  for  the  wife's  use." 

Conveyances  of  real  estate  from  the  husband  to  the  wife  directly, 
without  the  intervention  of  a  trustee,  though  void  at  law,  are  up- 
held in  equity,  as  between  the  parties,  where  they  are  a  just  and 
suitable  provision  for  the  wife.85  In  an  Indiana  case  it  was  said 
in  regard  to  conveyances  of  real  estate,  as  was  said  by  the  Supreme 
Court  of  the  United  States  8e  in  regard  to  gifts  of  personalty,  that 
"a  direct  conveyance  from  a  husband  to  his  wife  will  be  sustained 
and  upheld  in  equity  in  either  of  the  following  cases,  namely: 
(1)  Where  the  consideration  of  the  transfer  is  .a  separate  interest 
of  the  wife,  yielded  up  by  her  for  the  husband's  benefit  or  that  of 
her  family,  or  which  has  been  appropriated  by  him  to  his  uses; 

» »  Sims  v.  Rickets,  35  Ind.  181,  9  Am.  Rep.  679;  Shepard  v.  Shepard,  7 
Johns.  Ch.  (N.  Y.)  57,  11  Am.  Dec.  396;  Putnam  v.  Bicknell,  18  Wis.  333; 
Jones  v.  Clifton,  101  U.  S.  225,  25  L.  Ed.  908 ;  Crooks  v.  Crooks,  34  Ohio  St. 
610,  615;  Barron  v.  Barren,  24  Vt.  375;  Waterman  v.  Higgins,  28  Fla.  660, 
10  South.  97;  In  re  Williams,  4  Boyce  (Del.)  401,  88  Atl.  716;  Thomas  v. 
Horubrook,  259  111.  156,  102  N.  E.  198;  Currier  v.  Teske,  84  Neb.  60,  120  X. 
W.  1015,  133  Am.  St.  Rep.  602;  Williams  v.  Betts  (Del.  Ch.)  98  Atl.  371; 
Huber  v.  Huber's  Adm'r,  10  Ohio,  371;  Simmons  v.  McElwain,  26  Barb. 
(N.  Y.)  419;  Wilder  v.  Brooks,  10  Minn.  50  (Gil.  32),  88  Am.  Dec.  49.  Un- 
der the  law  of  New  Jersey,  a  transfer  of  property  by  a  husband  directly  to 
his  wife,  in  repayment  of  advances  made  to  him  by  her,  while  not  good  at 
law,  is  enforceable  in  equity.  English  v.  Brown  (D.  C.)  219  Fed.  248,  judg- 
ment modified  229  Fed.  34,  143  C.  C.  A.  336.  A  deed  direct  from  husband 
to  wife,  without  the  intervention  of  a  trustee,  made  in  good  faith  and  not 
in  fraud  of  creditors,  is  valid  both  in  law  and  equity,  and  passes  full  title. 
Currier  v.  Teske,  84  Neb.  60,  120  N.  W.  1015,  133  Am.  St.  Rep.  602,  revers- 
ing on  rehearing  82  Neb.  315,  117  N.  W.  712.  A  direct  deed  from  a  hus- 
band to  his  wife  executed  before  enactment  of  the  married  women's  stat- 
ute conveyed  to  her  an  equity  which  upon  his  death,  under  the  statute  of 
uses,  merged  legal  title  of  husband  in  her  equity.  Carson  v.  Berthold  & 
Jennings  Lumber  Co.,  270  Mo.  238,  192  S.  W.  1018. 

as  Wallingsford  v.  AUen,  10  Pet.  583,  9  L,  Ed.  542. 


§§  88-90)  POSTNUPTIAL  SETTLEMENTS  233 

(2)  where  the  husband  is  in  a  situation  to  make  a  gift  to  his  wife, 
and  distinctly  separates  the  property  given  from  the  mass  of  his 
property,  and  sets  it  apart  to  the  separate  and  exclusive  use  of 
his  wife."  87  Of  course,  if  the  transfer  of  personalty,  .or  convey- 
ance of  realty,  directly  from  husband  to  wife,  is  supported  by  a 
valuable  consideration,  there  is  all  the  more  reason  for  sustaining 
it  in  equity.88 

It  has  been  held  in  New  York  that  a  conveyance  directly  from  a 
wife  to  her  husband  is  not  only  void  in  law,  but  will  not  even  be 
sustained  in  equity.89 

Under  Modern  Statutes 

In  many  states  statutes  removing  the  disabilities  of  married 
women  entirely  or  to  a  limited  extent  have  greatly  modified  the 
rules  of  the  common  law  regarding  contracts,  gifts,  and  conveyanc- 
es between  husband  and  wife.  Thus  in  many  states  a  wife  may 
now  contract  with  her  husband  as  freely  as  if  unmarried,  and  in 
most  states  she  may  contract  with  him  with  reference  to  her  sepa- 
rate property.90  §o,  under  statutes  securing  to  married  women 
their  rights  in  their  separate  property,  gifts  from  the  husband 
to  the  wife  91  and  from  the  wife  to  the  husband  92  have  been  held 
valid,  though  in  some  states  the  statutes  place  restrictions  on  gifts 
between  husband  and  wife.98 

87  Sims  v.  Rickets,  35  Ind.  181,  9  Am.  Rep.  679. 

*s  Wallingsford  v.  Allen,  10  Pet.  583,  9  L.  Ed.  542. 

s »  White  v.  Wager,  25  N.  Y.  328;  Winans  v.  Peebles,  32  N.  T.  423.  But 
see  Sims  v.  Rickets,  35  Ind.  181,  9  Am.  Rep.  679.  Equity  scrutinizes  a  con- 
veyance from  wife  to  husband  closely  to  ascertain  whether  It  Is  free  from 
fraud,  but  will  not  disturb  a  fair  transaction.  McDonald  v.  Smith,  95  Ark. 
523,  130  S.  W.  515. 

»°  See  ante,  p.  -159. 

»i  Balster  v.  Cadick,  29  App.  D.  C.  405;  Corbett  v.  Sloan,  52  Wash. 
1,  99  Pac.  1025;  Sawyer  v.  Mefcters,  133  Wis.  350,  113  N.  W.  682;  Abbott 
v.  Fidelity  Trust  Co.,  149  Mo.  App.  511,  130  S.  W.  1120;  Bruce  v.  Bruce, 
95  Ala.  563, 11  South.  197 ;  Le  Blanc  v.  Sayers,  202  Mich.  565,  168  N.  W.  445. 

92  Fritz  v.  Fernandez,  45  Fla.  318,  34  South.  315;    Sample  v.  Guyer,  143 
Ala.  613,  42   South.   106;    Hamilton   v.   Douglas,  46   N.   T.  218:    Spradling 
v.  Spradling,  101  Ark.  451,  142  S.  W.  848;    Third  Nat.  Bank  v.  Poe,  5  Ga. 
App.   113,   62    S.   E.   826;     Rea   v.   Rea,   156  N.   C.   529,   72   S.   E.   573,   873. 
While  under  Civ.  Code  Ga.  1910,  §  3009,  a  wife  cannot  make  contract  of  sale 
of  her  separate  estate  to  her  husband,  without  approval  by  judge  of  superior 
court  of  her  domicile,  yet  she  may  make  gift  thereof  to  him.     Rich  v.  Rich, 
147  Ga.  488,  94  S.  E.  566. 

93  See  statutes  of  various  states.     And  see  Brown  v.  Brown,  174  Mass. 
197,  54  N.  E.  532,  75  Am.  St.  Rep.  292. 


234  ANTENUPTIAL  AND  POSTNUPTIAL  SETTLEMENTS  (Ch.  6 

In  many  jurisdictions  either  under  express  provisions  of  the  stat- 
ute or  under  the  construction  given  to  statutes  conferring  on  mar- 
ried women  the  power  to  contract  and  to  control  their  property 
as  if  unmarried,  conveyances  from  the  husband  to  the  wife  directly 
and  without  the  intervention  of  a  trustee  or  third  person  are  per- 
mitted.84 In  some  jurisdictions  conveyances  from  the  wife  to  the 
husband  have  been  recognized  as  valid,05  but  in  others  because  of 
the  requirement  that  the  husband  shall  join  in  all  conveyances 
by  the  wife,  a  conveyance  by  the  wife  directly  to  the  husband  is  not 
valid.96  In  view  of  the  statutes,  transfers  of  personal  property 
between  husband  and  wife  are  generally  held  to  be  valid.97 

».4  Baker  v.  Syfritt,  147  Iowa,  49,  125  N.  W.  998;  Koch  v.  Sallee,  17G 
111.  App.  379 ;  Mardt  v.  Scharmach,  65  Misc.  Rep.  124,  119  N.  Y.  Supp.  449 ; 
Alferitz  v.  Arrivillaga,  143  Cal.  646,  77  Pac.  657;  Fort  v.  Allen,  110  N.  C. 
183,  14  S.  E.  685 ;  Hoxie  v.  Price,  31  Wis.  82 ;  Johnson  v.  Brauch,  9  S.  D.  116. 
68  N.  W.  173,  62  Am.  St.  Rep.  85T;  Crowley  v.  Savings  Union  Bank  &  Trust 
Co.,  30  Cal.  App.  535,  159  Pac.  194 ;  Brecheiseri  v.  Clark,  103  Kan.  662,  176 
Pac.  137;  Ramsey  v.  Yount  (Ind.  App.)  120  N.  E.  618.  Such  transfers  are, 
however,  forbidden  in  Minnesota.  Laird  v.  Vila,  93  Minn.  45,  100  N.  W.  656, 
106  Am.  St.  Rep.  420.  Where  husband  conveyed  property  to  wife  to  se- 
cure family  in  a  home,  there  being  no  understanding  wife  should  hold  for 
his  benefit  solely,  title  vested  absolutely  in  her  as  between  herself  and  hus- 
band. English  v.  English,  229  Mass.  11,  118  N.  E.  178. 

!»»Osborn  v.  Cooper,  131  Ala.  405,  21  South.  320,  59  Am.  St.  Rep.  117; 
Brecheisen  v.  Clark,  103  Kan.  662,  176  Pac.  137;  Haguewood  v.  Britain, 
273  Mo.  89,  199  S.  W.  950;  Noel  v.  Fitzpa trick,  124  Ky.  787,  100  S.  W.  321; 
Despain  v.  Wagner,  163  111.  ?98,  45  N.  E.  129;  Savage  v.  Savage,  80  Me.  472, 
15  Atl.  43;  Lawshe  v.  Trenton  Banking  Co.,  87  N.  J.  Eq.  56,  99  Atl.  617; 
Baker  v.  Syfritt,  147  Iowa,  49,  125  N.  W.  998 ;  Smelser  v.  Meier,  271  Mo.  178. 
196  S.  W.  22 ;  Osburn  v.  Throckmorton,  90  Va.  311,  18  S.  E.  285.  Under  Civ. 
Code  Ga.  1910,  §  3009,  conveyance  by  wife  to  husband  of  her  property  with- 
out being  first  allowed  by  order  of  superior  court  of  her  domicile  is  void. 
Sikes  v.  Bradley,  20  Ga.  App.  470,  93  S.  E.  111. 

06  Alexander  v.  Shalala,  228  Pa.  297,  77  Atl.  554,  31  L.  R.  A.  (X.  S.)  844, 
139  Am.  St.  Rep.  1004,  20  Ann.  Cas.  1330.  Conveyance  can  be  made  only 
by  intervention  of  third  person.  McCord  v.  Bright,  44  Ind.  App.  275,  87 
N.  E.  654;  Brandau  v.  McCurley,  124  Md.  243,  92  Atl.  540,  L.  R.  A.  1915C, 
767;  Kelley  v.  Dearman,  65  W.  Va.  49,  63  S.  E.  693. 

97  Crowley  v.  Savings  Union  Bank  &  Trust  Co.,  30  Cal.  App.  535,  159  Pac. 
194;  Buttler  v.  Farmers'  Nat.  Bank,  173  Iowa,  659,  155  N.  W.  999;  Pedrick 
v.  Kuemmell  (N.  J.  Sup.)  65  Atl.  906  (construing  Pennsylvania  statute)  ; 
Seymour  v.  Fellows,  77  N.  Y.  178;  Rinn  v.  Rhodes,  93  Ind.  389. 


§§  91-92)  POSTNUPTIAL   SETTLEMENTS  235 


SAME— AS  AGAINST  CREDITORS  AND  PURCHASERS 

91.  Postnuptial  voluntary  settlements,  or  gifts  and  conveyances  be- 

tween husband  and  wife,  where  the  husband  is  indebted, 
are  held,  as  against  existing  creditors,  under  the  statute 
of  13  Eliz.  c.  5,  and  similar  statutes  in  this  country,  de- 
claring conveyances  of  real  estate  and  transfers  of  person- 
al property  void  when  made  with  intent  to  defraud  credi- 
^ors, 

(a)  ^Conclusively  fraudulent  and  void  in  some  states. 

(b)  "Prima  facie  fraudulent  and  void  in  England  and  in  most 

states. 

92.  Postnuptial  and  voluntary  conveyances  from  husband  to  wife, 

where  the  husband  is  indebted,  are  held,  as  against  sub- 
sequent purchasers,  under  the  statute  of  27  Eliz.  c.  4,  and 
similar  statutes  in  this  country,  declaring  void  as  against 
subsequent  purchasers  conveyances  made  with  the  inten- 
tion of  defeating  them, 

(a)  Conclusively  fraudulent  and  void  in  England. 

(b)  Prima  facie  fraudulent  and  void  in  this  country. 

While  gifts  and  conveyances  between  husband  and  wife  may  be 
perfectly  good  in  equity  as  between  the  parties  themselves,  they 
may  be  invalid  as  against  creditors  and  purchasers.  Postnuptial 
settlements,  or  gifts  and  conveyances  between  husband  and  wife, 
differ  from  antenuptial  settlements  in  the  matter  of  consideration. 
Antenuptial  settlements  are  supported  by  the  consideration  of  mar- 
riage, but  postnuptial  settlements  are  not,  for  the  marriage  is  past.08 
The  consideration  of  marriage  supports  an  antenuptial  settlement 
as  against  creditors  and  purchasers;  but,  as  it  is  wanting  in  a 
postnuptial  settlement,  such  a  settlement,  unless  it  is  supported  by 
some  other  valuable  consideration,  may  be  attacked  as  voluntary 
and  fraudulent,-  under  the  statutes  of  13  and  27  Eliz.  and  similar 
statutes  enacted  in  this  country."  As  we  have  seen,1  the  stat- 
es Unger  v.  Mcllinger,  37  Ind.  App.  639,  77  N.  E.  814,  117  Am.  St.  Rep. 
348;  Beverlin  v.  Casto,  62  W.  Va.  158,  57  S.  E.  411;  Lloyd  v.  Fulton,  91  U. 
S.  479,  23  L.  Ed.  363;  CLOW  v.  BROWN,  37  Ind.  App.  172,  72  N.  E.  534, 
Cooley  Cas.  Persons  and  Domestic  Relations,  119. 

98  CLOW  v.  BROWN,  37  Ind.  App.  172,  72  N.  E.  534,  Cooley  Cas.  Persons  and 
Domestic  Relations,  119.  But  an  existing  marriage  relation  is  a  valuable 
and  sufficient  consideration  to  support  a  conveyance  or  settlement  by  a  hus- 

1  See  note  1  on  following  page. 


236  ANTENUPTIAL  AND  POSTNUPTIAL  SETTLEMENTS  (Ch.  6 

ute  of  13  Eliz.  c.  5,  declares  all  conveyances  and  dispositions  of 
property,  real  or  personal,  made  with  intent  to  defraud  creditors, 
to  be  null  and  void  as  against  them ;  and  the  statute  of  27  Eliz. 
c.  4,  declares  void,  as  against  subsequent  purchasers  of  the  same 
lands,  tenements,  or  other  hereditaments,  all  conveyances,  etc., 
made  with  the  intention  of  defeating  them,  or  containing  a  pow- 
er of  revocation.  Both  of  these  statutes  contain  provisos  that  noth- 
ing therein  contained  shall  defeat  any  estate  or  interest,  made  on 
good  consideration  and  bona  fide,  to  any  person  not  having  at  the 
time  notice  of  any  fraudulent  purpose.  A  voluntary  settlement  on 
his  wife,  after  marriage,  by  one  who  is  indebted,  has  been  held 
in  some  of  the  states  to  be  conclusively  fraudulent  as  against  ex- 
isting creditors,  regardless  of  the  extent  of  the  indebtedness  or 
the  amount  of  the  settlement  or  the  circumstances  of  the  debtor.2 
This  rule  found  support  in  the  earlier  English  cases,  where  it  was 
said  that  all  voluntary  conveyances  were  fraudulent,  excepting 
"where  the  person  making  them  is  not  indebted  at  the  time."  * 
In  the  later  English  cases,  however,  it  is  held  that  not  every  in- 
debtedness will  render  a  voluntary  conveyance  fraudulent;4  that 
being  indebted  is  only  one  circumstance  from  which  evidence  of 
the  intention  to  defraud  may  be  drawn ; B  that,  if  a  person  owing 
debts  makes  a  settlement  which  subtracts  from  the  property  which 
is  the  proper  fund  for  the  payment  of  those  debts  an  amount 
without  which  the  debts  cannot  be  paid,  then  the  court  may  infer 
that  the  settlor  intended  to  delay  his  creditors.6  The  prevailing 
doctrine  in  this  country  is  in  accord  with  the  later  English  cases, 
namely,  that  a  voluntary  postnuptial  settlement  is  only  prima 
facie  fraudulent  as  against  existing  creditors,  and  that  this  pre- 
sumption may  be  rebutted  by  showing  that  the  settlement  was 
reasonable,  and  not  disproportionate  to  the  husband's  means,  tak- 
ing into  view  his  debts  and  situation,  and  that  there  was  no  intent, 

hand  on  his  wife,  If  It  does  not  affect  the  claims  of  creditors  existing  at  the 
time  of  the  said  conveyance  or  settlement.  Indiana  Match  Co.  v.  Kirk,  115 
111  App.  102. 

lAnte,  p.  221. 

aReade  v.  Livingston,  3  Johns.  Ch.  (N.  Y.)  481,  8  Am.  Dec.  520;  Annin 
v.  Annin,  24  N.  J.  Eq.  184,  181. 

8  Russel  v.  Hammond,  1  Atk.  13. 

«  Skarf  v.  Soulby,  1  Macn.  &  G.  374. 

•»  Richardson  v.  Smallwood,  Jac.  552. 

«  Freeman  v.  Pope,  5  Ch.  App.  538.  See  May,  Fraud.  Cony.  35,  for  a 
full  discussion  of  English  cases. 


§§  91-92)  POSTNUPTIAL  SETTLEMENTS  237 

actual  or  constructive,  to  defraud  creditors.7  While,  in  England, 
a  voluntary  postnuptial  settlement  of  real  estate  is  held  conclusive- 
ly void  as  against  a  subsequent  purchaser,  even  where  he  has  notice 
of  the  prior  deed,8  in  this  country  it  has  been  held  that  the  sub- 
sequent sale  is  only  presumptive  evidence  of  fraud.9  Postnuptial 
settlements  made  for  a  valuable  consideration,  like  antenuptial  set- 
tlements which  are  supported  by  the  consideration  of  marriage,  fall 
within  the  provisos  of  the  statutes  of  13  and  27  Eliz.,  which  except 
bona  fide  purchasers  for  value,  and  are  therefore  good  as  against 
both  creditors  and  subsequent  purchasers,  in  favor  of  a  wife  tak- 
ing innocently.10 

7  Kehr  _v.  Smith,  20  Wall.  31,  35,  22  L.  Ed.  313 ;   Leavitt  v.  Leavitt,  47  N.  H. 
329;    Woolston's  Appeal,  51  Pa.  452;    Reynolds  v.  Lansford,  16  Tex.  287; 
Wilson  v.  Buchanan,  7  Grat.  (Va.)  334,  338. 

8  Doe  v.  Manning,  9  East,  59 ;   Evelyn  v.  Templar,  2  Brown,  Ch.  148. 
a  4  Kent,  Comm.  464 ;   Cathcart  v.  Robinson,  5  Pet.  280,  8  L.  Ed.  120. 
icAnte,  pp.   221,236;     Macq.  Husb.  &  W.  279;    Magniac  v.  Thompson,   7 

Pet  348,  8  L.  Ed.  709;  Simmons  v.  McElwain,  26  Barb.  (N.  Y.)  419;  Bullard 
v.  Briggs,  7  Pick.  (Mass.)  533,  19  Am.  Dec.  292. 


238  SEI'ARATION  AND  DIVORCE  (Ch.  7 

CHAPTER  VII 

SEPARATION  AND  DIVORCE 

•j 

93-05.  Agreements  of   Separation. 

96.  Divorce  or  Judicial  Separation. 

97,  98.  Jurisdiction    to    Grant   Divorce. 

99-104.  Grounds    for   Divorce. 

99.  Adultery. 

100-102.  Cruelty. 

103.  Desertion. 

104.  Miscellaneous   Other    Grounds. 
105-109.  Defenses  in  Suits  for  Divorce. 

105.  Connivance. 

106.  Collusion. 
107,  108.  Condonation. 

309.  Recrimination. 

110.  Extraterritorial    Effect   of   Divorce, 

111.  Legislative  Divorce. 

AGREEMENTS  OF  SEPARATION 

93.  Agreements  of  separation  between  husband  and  wife  are  valid 

if  the  separation  has  actually  taken  place  at  the  time  of 
the  agreement,  or  immediately  follows  it;  but  it  is  other- 
wise if  a  future  separation  is  contemplated. 

94.  The  agreement  to  live  separately  will  not  be  enforced,  but  only 

the  provisions  for  maintenance,  and  other  collateral  en- 
gagements. 

95.  If  the  parties  live  together  again,  the  agreement  is  rescinded, 

and  the  parties  restored  to  their  full  marital  rights. 

At  one  time  the  courts  refused  to  countenance  any  agreement 
between  husband  and  wife  to  live  separately,  without  regard  to 
whether  the  agreement  contemplated  an  immediate  separation  or  a 
separation  in  the  future,  and  without  regard  to  the  cause  of  the 
separation.  All  agreements  for  a  separation  were  held  void  as 
against  public  policy,  because  in  derogation  of  the  marriage  relation. 

"This  court,"  once  said  Lord  Stowell,  "considers  a  private  sepa- 
ration as  an  illegal  contract,  implying  a  renunciation  of  stipulated 
duties;  a  dereliction  of  those  mutual  offices  which  the  parties  are 
not  at  liberty  to  desert ;  an  assumption  of  a  false  character  in  both 
parties,  contrary  to  the  real  status  personae,  and  to  the  obligations 


§  93-95)  AGREEMENTS   OF   SEPARATION  239 

which  both  of  them  have  contracted  in  the  sight  of  God  and  mail, 
to  live  together  'till  death  do  them  part,'  and  on  which  the  solem- 
nities both  of  civil  society  and  of  religion  have  stamped  a  binding 
authority,  from  which  the  parties  cannot  release  themselves  by  any 
private  act  of  their  own,  or  for  causes  which  the  law  itself  has  not 
pronounced  to  be  sufficient  and  sufficiently  proved."  x 

There  has,  however,  been  a  complete  change  in  the  law  in  this 
respect  in  England,  and  agreements  to  live  separately  are  sustained 
by  the  English  courts  to-day  even  to  the  extent  of  enforcing  specific 
performance  of  the  agreement  to  live  apart.  This  was  caused  by  a 
change  in  judicial  opinion  as  to  the  demands  of  public  policy.  As 
was  said  by  Jessel,  M.  R. :  "A  change  came  over  judicial  opin- 
ion as  to  public  policy.  Other  considerations  arose,  and  people 
began  to  think  that,  after  all,  it  might  be  better  and  more  beneficial 
for  married  people  to  avoid  in  many  cases  the  expense  and  scandal 
of  suits  of  divorce  by  settling  their  differences  quietly  by  the  aid 
of  friends  out  of  court,  although  the  consequences  might  be  that 
they  would  live  separately."  2  Since  a  married  woman  could,  in  a 
suit  for  divorce,  sue  or  defend  in  her  own  name,  it  was  held  that 
she  could  compromsie  such  suit,  and  that,  since  she  could  compro- 
mise a  suit  for  divorce  already  instituted,  she  might  compromise 
the  difference  with  her  husband  before  the  commencement  of  liti- 
gation, by  agreeing  to  live  separately,  on  certain  terms  providing 
for  her  maintenance  and  the  custody  of  hec  children.3 

The  courts  in  this  country  have  taken  the  same  view.  It  may  be 
laid  down  as  a  general  rule  that  the  courts  will  enforce  covenant? 
or  promises  in  agreements  of  separation  relating  to  the  maintenance 
of  the  wife  and  other  collateral  engagements,  provided  the  separa- 
tion has  actually  taken  place  at  the  time  of  the  agreement,  or  imme- 
diately follows  the  agreement.4  But  an  agreement  having  in  view 

1  Mortimer  v.  Mortimer,  2  Hagg.  Const.  310. 

2  Besant  v.  Wood,  12  Ch.  Div.  605 ;    Wilson  v.  Wilson,  1  H.  L.  Cas.  538 ; 
Hunt  v.  Hunt,  4  De  Gex,  F.  &  J.  238 ;    Marshall  v.  Marshall,  27  Wkly.  Rep. 
399;   Hart  v.  Hart,  18  Ch.  Div.  670. 

s  Besant  v.  Wood,  12  Ch.  Div.  605 ;  McGregor  v.  McGregor,  20  Q.  B.  Div. 
529. 

*  Archbell  v.  Archbell,  158  N.  C.  408,  74  S.  E.  327,  Ann.  Cas.  1913D,  261 ; 
Ellett  v.  Ellett,  157  N.  C.  161,  72  S.  E.  861;  39  L.  R.  A.  (N.  S.)  1135,  Ann. 
Cas.  1913B,  1235;  In  re  Singer's  Estate,  233  Pa.  55,  81  Atl.  898,  Ann.  Cas. 
191 3  A,  1326;  Amspoker  v.  Amspoker,  99  Neb.  122,  155  N.  W.  602;  Pry  or  v. 
Pryor,  88  Ark.  302,  114  S.  W.  700,  129  Am.  St.  Rep.  102 ;  Sumner  v.  Sum- 
ner,  121  Ga.  1,  48  S.  E.  727;  HIETT  v.  HIETT,  74  Neb.  96,  103  N.  W.  1051; 


240  SEPARATION  AND  DIVORCE  (Ch.  7 

a  separation  in  the  future  is  altogether  void,  as  against  public  pol- 
icy, and  it  is  immaterial  whether  they  are  made  before  or  after 
marriage,  because  they  give  inducements  to  the  parties  not  to  per- 
form "duties  in  the  fulfillment  of  which  society  has  an  interest."  * 
"The  distinction,"  it  has  been  said,  "rests  upon  the  following 
ground:  An  agreement  for  an  immediate  separation  is  made  to 
meet  a  state  of  things  which,  however  undesirable  in  itself,  has  in 
fact  become  inevitable.  Still,  that  state  of  things  is  abnormal,  and 
not  to  be  contemplated  beforehand.  'It  is  forbidden  to  provide 
for  the  possible  dissolution  of  the  marriage  contract,  which  the 
policy  of  the  law  is  to  preserve  intact  and  inviolate.'  Or,  in  other 
words,  to  allow  validity  to  provisions  for  a  future  separation  would 


Cooley,  Cas.  Persons  and  Domestic  Relations,  124;  Effray  v.  Effray,  110 
App.  Dlv.  545,  97  N.  Y.  Supp.  286;  Branch  v.  Branch's  Ex'r,  98  S.  W.  1004, 
30  Ky.  Law  Rep.  417 ;  Carsoa  v.  Murray,  3  Paige  (N.  Y.)  483 ;  Champlin  v. 
Champlin,  Hoff.  Ch.  (N.  Y.)  55;,  Calkins  v.  Long,  22  Barb.  (X.  Y.)  97;  Petti  t 
v.  Pettit,  107  N.  Y.  677,  14  N.  E.  500;  Clark  v.  Fosdick,  118  N.  Y.  7,  22  N.  E. 
1111,  6  L.  R.  A.  132,  16  Am.  St.  Rep.  733 ;  Hutton  v.  Button's  Adm'r,  3  Pa. 
100;  Hitner's  Appeal,  54  Pa.  110 ;  Appeal  of  Agnew  (Pa.)  12  Atl.  160;  Com. 
v.  Richards,  131  Pa.  209,  18  Atl.  1007 ;  Dutton  v.  Dutton,  30  Ind.  452 ;  Page 
v.  Trufant,  2  Mass.  159,  3  Am.  Dec.  41 ;  Fox  v.  Davis,  113  Mass.  255,  18  Am. 
Rep.  476;  Randall  v.  Randall,  37  Mich.  563;  Barnes  v.  Barnes,  104  N.  C. 
613,  10  S.  E.  304 ;  Rains  v.  Wheeler,  76  Tex.  390,  13  S.  W.  324 ;  Carey  v. 
Mackey,  82  Me.  516,  20  Atl.  84,  9  L.  R.  A,  113,  17  Am.  St.  Rep.  500;  Garver 
v.  Miller,  16  Ohio  St.  527 ;.  Bettle  v.  Wilson,  14  Ohio,  257 ;  Thomas  v.  Brown, 
10  Ohio  St  247 ;  Loud  v.  Loud,  4  Bush.  (Ky.)  453 ;  Gaines'  Adm'x  v.  Poor,  S 
Mete.  (Ky.)  503,  79  Am.  Dec.  559 ;  Wells  v.  Stout,  9  Cal.  479 ;  McCubbin  v. 
Patterson,  16  Md.  179;  Robertson  v.  Robertson,  25  Iowa,  350;  Walker 
v.  Walker's  Ex'r,  9  Wall.  743,  19  L.  Ed.  814 ;  Switzer  v.  Switzer,  26  Grat  (Va.) 
574;  Harshberger's  Adm'r  v.  Alger,  31  Grat.  (Va.)  52.  Separation  agree- 
ments will  be  enforced  in  equity  only  so  far  as  it  is  just  to  enforce  them. 
Halstead  v.  Halstead,  74  N.  J.  Eq.  596,  70  Atl.  928. 

sHunt  v.  Hunt,  4  De  Gex,  F.  &  J.  221.  And  see  Clark,  Cont  444,  and  cases 
there  cited ;  Sumner  v.  Sumner,  121  Ga.  1,  48  S.  E.  727 ;  Hill  v.  Hill,  74  N.  H. 
288,  67  Atl.  406, 12  L.  R.  A.  (N.  S.)  848,  124  Am.  St.  Rep.  966 ;  Boyd  v.  Boyd,  188 
111.  App.  136;  Terkelsen  v.  Petersen,  216  Mass.  531,  104  N.  E.  351;  Winter  v. 
Winter,  191  N.  Y.  462,  84  N.  E.  382,  16  L.  R.  A,  (N.  S.)  710 ;  Kaufman  v.  Kauf- 
man, 158  App.  Div.  892,  142  N.  Y.  Supp.  1048 ;  Sayles  v.  Sayles,  21  N.  H.  312, 
53  Am.  Dec.  208 ;  Adams  v.  Adams,  2D  Minn.  72 ;  Stokes  v.  Anderson,  118  Ind. 
533,  21  N.  E.  331,  4  L.  R,  A.  313 ;  People  v.  Mercein,  8  Paige  (N.  Y.)  47,  68 ; 
Randall  v.  Randall,  37  Mich.  563 ;  Gaines'  Adm'x  v.  Poor,  3  Mete.  (Ky.)  503, 
79  Am.  Dec.  559;  Durant  v.  Titley,  7  Price,  577;  St.  John  v.  St  John,  11 
Ves.  526;  Jee  v.  Thurlow,  2  Barn.  &  C.  547.  In  the  Philippine  Islands  it  is 
held  that  an  agreement  between  husband  and  wife  providing  for  a  separa- 
tion and  division  of  property  is  void  unless  a  provision  permitting  such  a  con- 
tract is  contained  in  the  marriage  contract.  Quintaua  v.  Lerma,  26  Phil. 
Rep.  2S5. 


§  96)  DIVORCE   OR   JUDICIAL   SEPARATION  241 

be  to  allow  the  parties,  in  effect,  to  make  the  contract  of  marriage 
determinable  on  conditions  fixed  beforehand  by  themselves."  6 

It  must  be  noted  that,  where  the  law  does  enforce  an  agreement 
of  separation,  it  does  so  only  as  to  the  provision  as  to  maintenance 
and  other  collateral  engagements.  The  courts  of  this  country,  at 
least,  will  not  aid  in  carrying  out  such  an  agreement,  in  so  far  as  it 
relates  solely  to  the  parties  living  apart.  As  was  said  in  a  Pennsyl- 
vania case :  "When  the  parties  have  effected  the  separation,  equity 
will  control  its  incidents,  and  accomplish  its  lawful  objects.  It  will 
compel  the  husband  to  pay  what  he  stipulated  to  pay  for  the  main- 
tenance of  the  wife,  *  *  *  but  it  will  not  decree  a  separa- 
tion." 7 

An  agreement  of  separation  will  be  considered  as  rescinded  if  the 
parties  afterwards  cohabit  or  live  together  as  husband  and  wife,  by 
mutual  consent,  for  ever  so  short  a  time.8  And  in  such  an  event  all 
the  provisions  of  the  agreement  will  cease  to  operate,  and  the  par- 
ties will  be  restored  to  all  their  marital  rights  to  the  same  extent  as 
if  no  separation  had  ever  taken  place.9 

DIVORCE  OR  JUDICIAL  SEPARATION 

96.  Divorce  is  the  legal  separation  of  husband  and  wife  by  the  judg- 
ment of  a  court.    There  are  two  kinds: 

(a)  It  may  dissolve  the  marriage,  in  which  case  it  is  called  a  di- 

vorce "a  vinculo  matrimonii." 

(b)  It  may  suspend  the  effect  of  the  marriage  only  in  so  far  as 

cohabitation  is  concerned,  in  which  case  it  is  called  a  di- 
vorce "a  mensa  et  thoro." 

ePol.  Cont.  286. 

7  Smith  v.  Knowles,  2  Grant,  Cas.  (Pa.)  413.  And  see  Adams  v.  Adams,  32 
Pa.  Super.  Ct.  353;  McKennan  v.  Phillips,  6  Whart.  (Pa.)  571,  37  Am.  Dec. 
438;  Randall  v.  Randall,  37  Mich.  563;  Collins  v.  Collins,  62  N.  C.  153,  93 
Am.  Dec.  606;  McCrocklin  v.  McCrocklin,  2  B.  Mon.  (Ky.)  370;  Tourney  v. 
Sinclair,  3  How.  (Miss.)  324 ;  Rogers  v.  Rogers,  4  Paige  (N.  Y.)  516,  27  Am. 
Dec.  84;  Banner  v.  Banner,  184  Mo.  App.  396,  171  S.  W.  2;  Aspinwall  v. 
Aspinwall,  49  N.  J.  Eq.  302,  24  Atl.  926. 

s  In  re  Mlatteote's  Estate,  59  Colo.  566,  151  Pac.  448 ;  Boyd  v.  Boyd,  188 
111.  App.  136;  Haile  v.  Hale,  40  Okl.  101,  135  Pac.  1143;  Archbell  v.  Arch- 
bell,  158  N.  C.  408,  74  S.  E.  327,  Ann.  Cas.  1913D,  261. 

»  See  Carson  v.  Murray,  3  Paige  (N.  Y.)  483.  But  see  Dennis  v.  Perkins,  88 
Kan.  428,  129  Pac.  165,  43  L.  R.  A.  (N.  S.)  1219,  holding  that  resumption  of 
marital  relations  does  not  necessarily  avoid  the  separation  agreement  in 
toto,  but  only  so  far  as  the  facts  and  circumstances  show  an  intent  to- 
avoid  it. 

TIFF.P.&  D.REL.(3o  ED.)— 16 


242  SEPARATION  AND  DIVORCE  (Cll.  7 

In  England  the  term  "divorce"  is  now  applied  both  to  decrees  of 
nullity  of  marriage  and  decrees  of  dissolution.  But  in  this  country 
the  term  is  limited  to  decrees  dissolving  or  suspending  the  effect  of 
a  valid  marriage.  Divorce  means  "the  legal  separation  of  man  and 
wife,  effected,  for  cause,  by  the  judgment  of  a  court,  and  either  to- 
tally dissolving  the  marriage  relation,  or  suspending  its  effects  so 
far  as  concerns  the  cohabitation  of  the  parties."  10  When  the  di- 
vorce is  a  total  dissolution  of  the  marriage  relation,  it  is  called  a 
divorce  "from  the  bond  of  marriage,"  or,  in  the  Latin,  "a  vinculo 
matrimonii."  Such  a  divorce  dissolves  the  marriage  tie,  and  re- 
leases the  parties  wholly  from  their  matrimonial  obligations.11 
When  the  divorce  merely  suspends  the  effect  of  the  marriage  as  to 
cohabitation,  it  is  called  a  divorce  from  bed  and  board,  or,  in  the 
Latin,  "a  mensa  et  thoro."  Such  a  divorce  is  partial  or  qualified. 
The  parties  are  separated  and  forbidden  to  live  or  cohabit  together 
again,  but  the  marriage  itself  is  not  affected.12 

In  South  Carolina  absolute  divorce  is  unknown,  and  her  courts 
have  jurisdiction  to  grant  only  divorces  a  mensa  et  thoro.18 

The  marriage  status  is  a  matter  of  public  interest,14  and  the  Leg- 
islature may  prescribe  the  grounds  on  which  divorces  may  be 
granted  and  such  conditions  ahd  limitations  on  the  right  to  divorce 
as  it  deems  public  policy  requires.15  In  view  of  this  interest  of  the 
public,  an  action  for  divorce  is  not  a  mere  controversy  between 
private  parties;  but  the  state  is  interested  as  an  adverse  party  so 
far  as  to  oppose  the  granting  of  a  divorce  unless  a  case  is  made 
within  the  rules  prescribed  by  the  Legislature.18  As  the  state  fa- 
vors the  continuity  of  the  marriage  relation,17  public  policy  requires 
that  the  marital  relation  shall  not  be  severed  without  adequate 

10  Black,  Law  Diet,  tit  "Divorce."  For  other  definitions,  see  Words  and 
Phrases,  vol.  3,  p.  2149. 

nConnella  v.  Connella,  114  La.  950,  38  South.  690;  Griswold  v.  Griswold. 
23  Colo.  A  pp.  365,  129  Pac.  560. 

12  Freeman  v.  Beefer,  173  N.  C.  581,  92  S.  E.  486,  L.  R.  A.  1917E,  886: 
Evans  v.  Evans,  43  Minn.  31,  44  N.  W.  524,  7  L.  R.  A.  448. 

is  McCreery  v.  Davis,  44  S.  C.  195,  22  S.  E.  178,  28  L.  R.  A.  655,  51  Am.  St. 
Rep.  794. 

i*  Barringer  v.  Dauernheim,  127  La.  679,  53  South.  923. 

IB  Franklin  v.  Franklin,  40  Mont.  348,  106  Pac.  353,  26  L.  R.  A.  (N.  S.)  490, 
20  Ann.  Cas.  339. 

isRehfuss  v.  Rehfuss,  169  Cal.  86,  145  Pac.  1020;  People  v.  Case,  241  111. 
279,  89  N.  E.  638,  25  L.  R.  A.  (N.  S.)  578;  Grant  v.  Grant,  84  N.  J.  Eq.  SI, 
92  Atl.  791. 

IT  Lyon  v.  Lyon,  39  Okl.  Ill,  134  Pac.  650. 


§§  97-98)  JURISDICTION   TO   GRANT   DIVORCE  243 

cause.18     Divorces  may  be  granted  only  on  legal  grounds  as  pre- 
scribed by  statute.19 

JURISDICTION  TO  GRANT  DIVORCE 

97.  In  this  country  jurisdiction  to  entertain  a  suit  for  divorce  is 

entirely  statutory ;  but,  when  once  conferred,  it  is  exercised 
as  in  the  English  ecclesiastical  courts. 

98.  ELEMENTS  OF  JURISDICTION— Jurisdiction  of  proceed- 

ings for  a  divorce  is,  in  general,  determined  by  the  domi- 
cile of  the  parties. 

In  England  the  only  courts  which  had  any  jurisdiction  to  enter- 
tain applications  for  divorce  were  the  ecclesiastical  courts,  and  they 
only  granted  divorces  a  mensa  et  thoro.  Courts  of  common  law 
and  courts  of  chancery  had  no  jurisdiction  at  all  in  this  respect.20 
In  this  country  there  is  no  tribunal  having  the  jurisdiction  of  the 
ecclesiastical  courts.  When  the  colonies  and  the  states  of  the 
Union  adopted  the  common  law  of  England  they  did  not  adopt  the 
ecclesiastical  law  pertaining  to  marriage  and  divorce.21  Our  courts 
have  jurisdiction  to  grant  divorces  only  when  such  jurisdiction 
has  been  expressly  conferred  on  them  by  statute.22 

An  action  tor  divorce,  though  a  civil  action,  partakes  of  the 
character  of  neither  an  action  ex  contractu  nor  an  action  ex  de- 
licto.23  It  is  neither  an  action  at  law  nor  a  suit  in  equity  in  the 
ordinary  sense.24  Nevertheless,  in  exercising  the  jurisdiction  con- 
ferred by  statute,  the  courts  are  largely  governed  by  the  rules  of 

18  Devers  v.  Devers,  115  Va.  517,  79  S.  E.  1048;  TRBNCHARD  v.  TRENCH- 
ARD,  245  111.  313,  92  N.  E.  243,  Cooley  Cas.  Persons  and  Domestic  Relations, 
131 ;  Rindlaub  v.  Rindlaub,  19  N.  D.  352,  125  N.  W.  479. 

i»Voss  v.  Voss,  157  Wis.  430,  147  N.  W.  634;  Main  v.  Main,  168  Iowa, 
353,  150  N..W.  590;  Ackerman  v.  Ackerman,  200  N.  Y.  72,  93  N.  E.  192. 

20  Since  the  Judicature  Act  of  1873  divorce  causes  are  heard  in  the  Pro- 
bate, Divorce,  and  Admiralty  Division  of  the  High  Court  of  Justice. 

21  Cotter  v.  Cotter,  225  Fed.  471,  139  C.  C.  A.  453;   Ackerman  v.  Ackerman, 
200  N.  Y.  72,  93  N.  E.  192. 

22  Burtis  v.  Burtis,  Hopk.  Ch.  (N.  Y.)  557,  14  Am.  Dec.  563;    Anon.,  24  N. 
J.  Eq.  19;   Cizek  v.  Cizek,  76  Neb.  797,  307  N.  W.  1012;   Rumping  v.  Rumping, 
36  Mont.  39,  91  Pac.  1057,  12  L.   R.  A.   (N.    S.)   1197,  12  Ann.  Cas.   1090; 
Ackerman  v.  Ackerman,  200  N.  Y.  72,  93  N.  E.  192;    Judson  v.  Judson,  171 
Mich.  185,  137  N.  W.  103 ;    Gilbert  v.  Hay  ward,  37  R.,  I.  303,  92,  Atl.  625 ; 
Bodie  v.  Bates,  99  Neb.  253,  156  N.  W.  8. 

28  Cohen  v.  Cohen,  3  Bovce  (Del.)  361.  84  Atl.  122. 

24  People  ex  rel.  Levine  v.  Shea,  201  X.  Y.  471,  94  N.  E.  1060. 


244  SEPARATION  AND   DIVORCE  (Ch.  7 

the  English  ecclesiastical  courts,  except  in  so  far  as  that  law  has 
been  modified  by  statute; 25  and  though  a  suit  for  divorce  is  not  a 
suit  in  equity,  and  therefore  not  within  the  ordinary  jurisdiction 
of  a  chancery  court,28  y_et,  except  as  the  procedure  may  be  governed 
by  statute,  the  courts  will  apply  the  rules  and  principles  of  equity.27 
In  the  absence  of  statutory  provisions  to  the  contrary,  jurisdic- 
tion to  grant  divorce  does  not  depend  on  the  place  where  the  mar- 
riage took  place,28  nor  upon  the  place  where  the  cause  for  divorce 
arose.  In  some  states  it  has  been  held  that  the  court  will  not  take 
jurisdiction,  if  the  offense  does  not  constitute  a  ground  for  divorce 
in  the  state  where  it  was  committed,  though  it  is  a  ground  for  di- 
vorce in  the  state  where  action  is  brought.29 

Jurisdiction  Dependent  on  Domicile 

It  is  a  general  rule  that  the  jurisdiction  of  proceedings  for  a  di- 
vorce depends  on  the  domicile  of  the  parties.  To  give  the  court 
jurisdiction  at  least  one  of  the  parties  must  be  domiciled  in  the 
state  or  territory  where  the  action  is  brought,30  and  if  neither  party 


2»  Crump  v.  Morgan,  38  N.  C.  91,  9S,  40  Am.  Dec.  447;  Le  Barren  v.  Le 
Barren,  35  Vt.  365 ;  Emerson  v.  Emerson.  120  Mid.  584,  87  Atl.  1033 ;  Wuest 
v.  Wuest,  17  Nev.  217,  30  Pac.  886;  Williamson  v.  Wdlliamson,  1  Johns.  Ch. 
<N.  Y.)  488,  491;  Barrere  v.  Barrere,  4  Johns.  Ch.  (N.  Y.)  187,  196;  Wood 
v.  Wood,  2  Paige  (N.  Y.)  108 ;  Devanbagh  v.  Devanbagh.  5  Paige  (N.  Y.)  554, 
28  Am.  Dec.  443 ;  Burr  v.  Burr,  10  Paige  (N.  Y.)  20 ;  Griffin  v.  Griffin,  47  N.  Y. 
137. 

20  Emerson  v.  Emerson,  120  Md.  584,  87  Atl.  1033;  Martin  v.  Martin,  173 
Ala.  106,  55  South.  632;  Judson  v.  Judson,  171  Mich.  185,  137  N.  W.  103; 
Bodie  v.  Bates,  99  Neb.  253,  156  N.  W.  8. 

27  People  ex  rel.  Levine  v.  Shea,  201  N.  Y.  471,  94  N.  E.  1060;  Johannessen 
v.  Johannessen,  70  Misc.  Rep.  361,  128  N.  Y.  Supp.  892 ;  Stone  v.  Duffy,  219 
Mass.  178,  106  N.  E.  595. 

28Ditson  v.  Ditson,  4  R.  I.  87;  Bierstadt  v.  Bierstadt,  29  App.  Div.  210, 
51  N.  Y.  Supp.  862;  Friedrich  v.  Friedrich,  230  Mass.  59,  119  N.  E.  449; 
Barber  v.  Barber,  89  Misc.  Rep.  519,  151  N.  Y.  Supp.  1064;  Jones  v.  Jones, 
€7  Miss.  195,  6  South.  712,  19  Am.  St.  Rep.  299;  Adams  v.  Adams,  101  Md. 
506,  61  Atl.  628;  Rose  v.  Rose,  132  Minn.  340,  156  N.  W.  664;  Duke  v.  Duke, 
70  N.  J.  Eq.  135,  62  Atl.  466;  Harteau  v.  Harteau,  31  Mass.  (14  Pick.)  181, 
25  Am.  Dec.  372;  Walker  v.  Walker,  111  Me.  404,  89  Atl.  373.  A  complaint 
for  divorce  presupposes  the  existence  of  a  marriage  between  the  parties 
litigant.  Santos  v.  Sweeney,  4  Phil.  Rep.  79. 

2»  Pope  v.  Pope,  161  Ky.  104,  170  S.  W.  504;  Harteau  v.  Harteau,  31  Mass. 
<14  Pick.)  181,  25  Am.  Dec.  372.  And  see  Andrews  v.  Andrews,  188  U.  S.  14,  23 
Sup.  Ct.  .237,  47  L.  Ed.  366.  But  see  Blakeslee  v.  Blakeslee,  41  Nev.  235,  168 
Pac,  950. 

»o  Van  Fossen  v.  State,  37  Ohio  St.  317,  41  Am.  Rep.  507;  Watkins  v.  Wat- 
kins,  125  Ind.  163,  25  N.  E.  175,  21  Am.  St  Rep.  217. 


:§§  97-98)  JURISDICTION   TO  GRANT   DIVORCE  245 

is  domiciled  in  the  state  the  court  has  in  fact  n'o  jurisdiction.31 
Generally  the  statutes  of  the  various  states  provide  that  the  plain- 
tiff must  be  domiciled  in  the  state,32  and  the  mere  fact  that  the 
domicile  was  acquired  for  the  purpose  of  obtaining  a  divorce  does 
not  affect  the  jurisdiction.33  Of  course,  if  both  parties  have  their 
domicile  in  the  state  where  action  is  brought,  the  jurisdiction  of 
that  state  is  complete  as  to  both  the  subject-matter  and  the  par- 
ties.34 

As  has  been  pointed  out  elsewhere,  the  domicile  of  the  wife  is 
generally  the  same  as  that  of  the  husband ; 85  consequently,  if  the 
wife  is  separated  from  the  husband  for  her  fault,  her  domicile  is 
still  the  same  as  his,  and  the  court,  in  an  action  for  divorce  brought 
by  the  husband  in  the  state  of  his  domicile,  has  jurisdiction  of  both 
parties.36  But  it  is  well  settled  that,  for  the  purpose  of  divorce, 
an  injured  and  innocent  wife  may  acquire  a  domicile  separate  from 

si  House  v.  House,  25  Ga.  473;  Keil  v.  Keil,  80  Neb.  496,  114  N.  W.  570; 
State  v.  Armington,  25  Minn.  29 ;  Ditson  v.  Ditson,  4  R.  I.  87.  It  has,  how- 
ever, been  held  in  some  cases  that,  if  the  parties  voluntarily  submitted  them- 
selves to  the  jurisdiction,  they  (but  not  third  persons)  are  thereafter  estopped 
to  deny  the  court's  jurisdiction,  in  re  Ellis'  Estate,  55  Minn.  401,  56  X.  W. 
1056,  23  L.  R.  A.  287,  43  Am.  St.  Rep.  514 ;  Kinnier  v.  Kinnier,  45  N.  Y.  535, 
6  Am.  Rep.  132 ;  Starbuck  v.  Starbuck,  173  N.  Y.  503,  66  N.  E.  193,  93  Am. 
St.  Rep.  631. 

32  See  the  statutes  of  the  various  states.  And  see  Carey  v.  Carey,  5  Boyce 
(Del.)  53,  90  Atl.  405;  Howell  v.  Heriff,  87  Kan.  389,  124  Pac.  168,  Ann. 
Cas.  1913E,  429;  La  Boute  v.  La  Boute,  210  Mass.  319,  96  N.  E.  675;  Bradfield 
v.  Bradfield,  154  Mich.  115,  117  N.  W.  588,  129  Am.  St.  Rep.  468;  Rumping 
v.  Rumping,  36  Mont.  39.  91  Pac.  1057,  12  L.  R.  A.  (N.  S.)  1197,  12  Ann.  Gas. 
1090 :  Ackerman  v.  Ackerman,  200  N.  Y.  72,  93  N.  E.  192 ;  Walker  v.  Walker, 
32  R.  I.  28,  78  Atl.  339 ;  Duxstad  v.-  Duxstad,  17  Wyo.  411,  100  Pac.  112,  12!) 
Am.  St.  Rep.  1138.  But  see  Fitzpatrick  v.  Fitzpatrick,  131  Tenn.  54,  173  S. 
W.  444.  The  word  "residence,"  as  used  in  statutes  prescribing  residence  in 
the  state  for  a  certain  period  toi  give  jurisdiction  in  divorce,  is  synonymous 
with  "domicile."  Miller  v.  Miller,  88  Vt.  134/92  Atl.  9,  L.  R,  A.  1915D,  852; 
€onnolly  v.  Connolly,  33  S.  D.  346,  146  N.  W.  581. 

S3  Gildersleeve  v.  Gildersleeve,  88  Conn.  689,  92  Atl.  684,  Ann.  Cas.  1916B, 
920.  But  mere  physical  presence  in  the  state  does  not  constitute  such  resi- 
dence or  domicile  as  will  confer  jurisdiction.  Presson  v.  Presson,  38  Nev. 
203,  147  Pac.  1081;  Halpine  v.  Halpine,  52  Pa.  Super.  Ct.  80. 

34  MteGill  v.  Derning,  44  Ohio  St.  645,  11  N.  E.  118;  Cheely  v.  Clayton,  110 
TJ.  S.  701,  4  Sup.  Ct.  328',  28  L.  Ed.  298. 

s  6  Ante,  p.  8& 

36  Loker  v.  Gerald,  157  Mass.  42,  31  N.  E.  709,  16  L.  R.  A.  497,  34  Am.  St. 
Rep.  252 ;  Burlen  v.  Shannon,  115  Mass.  438 ;  Hood  v.  Hood,  110  Mass.  463 ; 
Hunt  v.  Hunt,  72  N.  Y.  217,  28  Am.  Rep.  129;  Matter  of  Morrison  (In  re 
Feyh's  Estate)  52  Hun,  102,  5  N.  Y.  Supp.  90 ;  Post  v.  Post,  55  Misc.  Rep.  53S, 
1Q5  N.  Y.  Supp.  910. 


246  SEPARATION  AND  DIVORCE  (Ch.  7 

that  of  the  husband;87  and,  on  the  other  hand,  the  husband  can- 
not by  his  own  acts  prevent  the  wife  from  adopting  or  maintaining 
the  same  domicile  as  his  for  the  purposes  of  jurisdiction  of  divorce 
proceedings.88  So,  too,  if  the  husband,  for  the  purpose  of  obtain- 
ing a  divorce,  removes  to  and  acquires  a  domicile  in  another  state, 
the  domicile  of  the  innocent  wife  will  not  necessarily  follow  his, 
but  will  remain  in  the  state  where  she  actually  resides.39 

This  phase  of  the  question  of  jurisdiction  has  been  well  illustrated 
by  two  cases  decided  by  the  Supreme  Court  of  the  United  States. 
In  Atherton  v.  Atherton  *°  the  matrimonial  domicile  of  the  parties 
was  in  Kentucky.  The  wife  abandoned  the  domicile,  taking  up  her 
residence  in  New  York ;  the  husband  remaining  in  Kentucky.  He 
obtained  a  divorce  there  on  the  ground  of  abandonment ;  construc- 
tive service  being  made  on  the  wife  in  the  manner  prescribed  by 
the  law  of  Kentucky.  The  court  held  that  the  domicile  of  the  par- 
ties, for  the  purposes  of  the  suit,  was  in  Kentucky,41  and  that  the 
Kentucky  court  had  complete  jurisdiction.  In  Haddock  v.  Had- 
dock *-  the  matrimonial  domicile  of  the  parties  was  in  New  York. 

"Arrington  v.  Arrington,  102  N.  C.  491,  9  S.  E.  200;  Shaw  v.  Shaw,  98  • 
Mass.  158 ;  Smith  v.  Smith,  43  La.  Ann.  1140,  10  South.  248 ;  Cheever  v.  Wil- 
son, 76  U.  S.  (9  Wall.)  108,  19  I... Ed.  604;  Sneed  v.  Sneed,  14  Ariz.  17,  123 
Pac.  312,  40  L.  R.  A.  (N.  S.)  99 ;  Brown  v.  Brown,  164  111.  App.  589 ;  Ensign 
v.  Ensign,  54  Misc.  Rep.  289,  105  N.  Y.  Supp.  917,  affirmed  120  App.  Div.  882, 
105  N.  Y.  Supp.  1114;  Miller  v.  Miller,  67  Or.  359,  136  Pac.  15;  Carty  v. 
Carty,  70  W.  Va.  146,  73  S.  E.  310,  38  L.  R,  A.  (N.  S.)  297 ;  Harding  v.  Alden, 
9  Me.  (9  Greenl.)  140,  23  Am.  Dec.  549 ;  Hanberry  v.  Hanberry,  29  Ala.  719 ; 
Hibbert  v.  Hibbert,  72  N.  J.  Eq.  778,  65  Atl.  1028;  Ransom  v.  Ransom,  54 
Misc.  Rep.  410,  104  N.  Y.  Supp.  198. 

as  Ensign  v.  Ensign,  54  Misc.  Rep.  289,  105  N.  Y.  Supp.  917,  affirmed  in  120 
App.  Div.  882,  105  N.  Y.  Supp.  1114;  Hibbert  v.  Hibbert,  72  N.  J.  Eq.  778, 
65  Atl.  1028 ;  State  ex  rel.  Aldrach  v.  Morse,  31  Utah,  213,  87  Pac.  705,  7  L.  R. 
A.  (N.  S.)  1127.  Where  the  husband  left  the  state  to  avoid  a  criminal  charge 
the  wife's  domicile  was  not  changed.  Ackerman  v.  Ackerman,  200  N.  Y.  72, 
93  N.  E.  192. 

se  Vischer  v.  Vischer,  12  Barb.  (N.  Y.)  640;  Heath  v.  Heath,  42  L.a.  Ann. 
437,  7  South.  540:  Woolworth  v.  Woolworth,  115  App.  Div.  405,  100  N.  Y. 
Supp.  865. 

«°  1S1  IT.  S.  155.  21  Sup.  Ct.  544,  45  L.  Ed.  794,  reversing  155  N.  Y.  129,  49 
N.  E.  933,  40  L.  R.  A.  291,  63  Am.  St.  Rep.  650. 

41  It  is  to  be  observed,  however,  that  according  to  the  views  of  Mr.  Justice 
Peckham,  who  dissented  from  the  decision  of  the  court,  the  wife  was  justified 
in  leaving  the  husband,  so  that  she  obtained  a  new  domicile  in  New  York ; 
and  this  seems  also  to  be  the  view  taken  by  the  New  York  court.    Atherton 
v.  Atherton.  155  N.  Y.  129,  49  N.  E.  933,  40  L.  R.  A.  291,  63  Am.  St.  Rep.  650. 
In  this  connection  see,  also,  Post  v.  Post,  55  Misc.  Rep.  538,  105  N.  Y.  Supp. 
910:   Matter  of  Morrison  (In  re  Feyh's  Estate)  52  Hun.  102.  5  N.  Y.  Supp.  90. 

42  HADDOCK  v.  HADDOCK,  201  U.  S.  562,  26  Sup.  Ct.  525,  50  L.  Ed.  867?  5 


§  99)  GROUNDS   FOR   DIVORCE  247 

The  husband  abandoned  the  wife  and  subsequently  acquired  a  dom- 
icile in  Connecticut;  the  wife  remaining  in  New  York.  The  hus- 
band obtained  a  divorce  in  Connecticut ;  constructive  service  being 
made  on  the  wife  as  prescribed  by  the  law  of  Connecticut.  The 
court  held  that  the  domicile  of  the  wife  did  not  in  such  case  follow 
the  husband,43  and,  following  the  New  York  rule,  that  the  Con- 
necticut court  acquired  no  jurisdiction  over  her  to  grant  a  divorce.44 

GROUNDS  FOR  DIVORCE— ADULTERY 

99.  Adultery  is  the  voluntary  intercourse  of  a  married  person  with 
another  than  his  or  her  wife  or  husband,  and  is  almost  uni- 
versally made  a  ground  of  divorce. 

As  has  been  seen,  prior  to  1858,  in  England,  it  was  only  the  eccle- 
siastical courts  which  had  jurisdiction  to  grant  divorces.  These 
courts  granted  divorces  on  the  ground  of  adultery,  but  the  divorce 
was  only  a  mensa  et  thoro.  The  only  way  in  which  a  divorce  a 
vinculo  matrimonii  could  be  obtained  was,  in  Catholic  England,  by 
dispensation  from  the  Pope,  and  later,  in  Protestant  England,  by 
a  bill  in  Parliament.  So,  in  this  country,  the  only  way  in  which  a 
divorce  a  vinculo  could  be  obtained,  even  on  the  ground  of  adultery, 
was  by  recourse  to  the  Legislature.  There  are  now  in  England, 
and  in  most  of  our  states,  statutes  making  adultery  a  ground  for 
an  absolute  divorce  a  vinculo  matrimonii.  Though  to  some  extent 
it  *  otherwise  in  England,  the  statutes  in  this  country  do  not,  as  a 
rule,  make  any  distinction  in  this  respect  between  the  rights  of  the 
husband  and  those  of  the  wife.  The  same  acts  of  adultery  which, 
when  committed  by  the  wife,  would  entitle  the  husband  to  a  di- 
vorce, will  entitle  the  wife  to  a  divorce  if  committed  by  the  hus- 
band. The  statutes  are  not  the  -same  in  all  the  states.  In  some 
states'  a  single  act  of  adultery  is  ground  for  a  divorce,  while  in 

Ann.  Cas.  1,  Cooley  Cas.  Persons  and  Domestic  Relations,  144,  affirming  178 
N.  Y.  557,  ,70  N.  E.  1099. 

43  in  this  connection  the  case  of  State  ex  rel.  Aldrach  v.  Morse,  31  Utah, 
213,  S7  Pac.  705,  7  L.  R.  A.  (N.  Sj  1127,  is  of  interest.  In  this  case,  on  an 
application  for  mandamus  to  compel  the  district  court  to  proceed  with  the 
trial  of  a  suit  for  divorce,  it  was  held  that  the  husband  cannot,  by  abandon- 
ing the  wife  and  going  into  another  state  to  reside,  change  the  matrimonial 
domicile,  so  that  the  court  would  not  have  jurisdiction  of  a  suit  for  divorce 
brought  by  the  wife  in  the  state  of  the  matrimonial  domicile. 

**  Extraterritorial  effect  of  divorce,  see  post,  p.   287. 


!M8  SEPARATION  AND  DIVORCE  (Ch.  7 

others  there  must  be  a  "living  in  adultery,"  45  and  in  others  the 
adultery  must  be  accompanied  by  cruelty,  desertion,  or  other  ag- 
gravating circumstances.48 

Adultery  consists  in  the  voluntary  sexual  intercourse  of  a  mar- 
ried person  with  another  than  his  or  her  wife  or  husband,  whether 
the  other  party  to  the  intercourse  is  married  or  single.  Sexual  in- 
tercourse under  coercion,  as  in  the  case  of  rape  47  or  during  in- 
sanity,48 is  not  adultery,  because  it  is  not  voluntary.  Mistake  of 
fact  may  prevent  an  act  of  intercourse  from  being  adultery;  as 
where  a  woman  has  intercourse  with  a  man  under  the  belief  that 
he  is  her  husband,  or  where  she  has  married  the  person  with  whom 
she  has  intercourse  under  the  belief  that  her  husband  was  dead.49 
Mistake  of  law,  however,  is  no  defense.  Belief  in  the  right  to  have 
more  than  one  wife  would  not  prevent  the  intercourse  with  the 
latter  from  being  adulterous.50  And  intercourse  after  a  second  mar- 
riage, when  a  divorce  from  a  prior  marriage  is  illegal  is  adultery, 
and  ground  for  a  divorce  from  the  prior  marriage,  though  there  was 
a  bona  fide  belief  in  the  validity  of  the  divorce.61 

<B  Prendergast  v.  Prendergast,  146  N.  C.  225,  59  S.  E,  692,  construing  Re- 
visal  1905,  §  3350. 

<«  Stewart  v.  Stewart,  105  Md.  297,  66  Atl.  16. 

47  People  v.  Chapman,  62  Mich.  280,  28  N.  WL  896,  4  Am.  St.  Rep.  857.  Since 
adultery  is  voluntary  sexual  intercourse  of  a  married  person  with  one  not 
the  husband  or  wife  of  such  person,  a  wife  may  have  a  divorce  for  adultery 
if  her  husband  commits  a  rape  on  another  woman.  Johnson  v.  Johnson,  78 
N.  J.  Eq.  507,  80  Atl.  119. 

<8  Nichols  v.  Nichols,  31  Vt.  328,  73  Am.  Dec.  352;  Broadstreet  v.  Broad- 
street,  7  Mass.  474 ;  Wray  v.  Wray,  19  Ala.  522 ;  Id.,  33  Ala.  187 ;  Mims  v. 
Mims,  33  Ala.  98.  But  see  Matchin  v.  Matchin,  6  Pa.  332*,  47  Am.  Dec.  466. 

^9  Ayl.  Par.  226;  Valleau  v.  Valleau,  6  Paige  (N.  Y.)  207.  Of  course,  this 
does  not  apply  if  the  Intercourse  under  the  second  marriage  is  continued 
after  knowledge  that  the  first  «pouse  is  still  living.  Miathewson  v.  Mathew- 
son,  18  R.  I.  456,  28  Atl.  801.  49  Am.  St.  Rep.  782. 

BO  See  Reynolds  v.  U.  S..  98  U.   S.  145,  25  L,.  Ed.  244. 

»i  Simonds  v.  Simonds,  103  Mass.  572,  4  Am.  Rep.  576;  Leith  v.  Leith,  39 
N.  H.  20 ;  Ackerman  v.  Ackerman,  200  N.  Y.  72,  93  N.  E.  192 ;  McGiffert  v. 
McGiffert,  31  Barb.  (N.  Y.)  69.  See  Palmer  v.  Palmer,  1  Swab.  &  T.  551. 


§§  100-102)  GROUNDS  FOR  DIVORCE  249 


SAME— CRUELTY 

100.  Cruelty  is  made  a  ground  of  divorce  in  most  states  by  statute. 

The  statutes  use  various  terms,  as  "extreme  cruelty,"  "in- 
tolerable cruelty,"  "cruel  and  inhuman  conduct,"  conduct 
rendering  it  "unsafe  and  improper"  for  the  parties  to  co- 
habit, etc. 

101.  The  general  rule  is  that  conduct  to  come  within  the  statutes 

must  consist  in  the  infliction,  or  threatened  infliction,  of 
bodily  harm.  This  may  be 

(a)  By  personal  violence,  either  actual  or  threatened  and  reason- 

ably apprehended. 

(b)  By  words  or  conduct,  without  personal  violence,  causing 

mental  suffering,  and  thereby  injuring,  or  threatening  to 
injure,  the  health. 

102.  In  some  states  falsely  charging  a  wife  with  adultery  is  held  to. 

be  cruelty,  though  unaccompanied  by  bodily  harm ;  and  in 
a  few  states  it  is  held  generally  that  bodily  injury  is  not 
necessary. 

In  most  states,  by  statute,  cruelty  is  made  a  ground  for  divorce 
a  vinculo  matrimonii  or  a  mensa  et  thoro.  In  some  it  is  ground  for 
divorce  a  mensa  et  thoro  only.  Various  expressions  are  found  in 
the  statutes  of  the  different  states,  but  they  are  held  to  mean  sub- 
stantially the  same  thing.  These  expressions  are,  in  most  states, 
"extreme  cruelty";  in  some,  "repeated  cruelty";  in  others  "cruel 
or  abusive  treatment,"  "cruel  and  inhuman  treatment,  whethef 
practiced  by  using  personal  violence  or  other  means,"  "cruel  treat- 
ment, outrages,  or  excesses,  so  as  to  render  their  living  together  in- 
supportable," "cruel  and  inhuman  treatment,  or  personal  indigni- 
ties, rendering  life  burdensome," 62  "intolerable  severity,"  "such 
conduct  on  the  part  of  the  defendant  towards  the  plaintiff  as  may 
render  it  unsafe  and  improper  for  the  former  to  cohabit  with  the  lat- 
ter." In  some  states  it  is  declared  that  "cruelty,"  within  the  mean- 
ing of  the  statute,  must  consist  of  personal  violence.  In  others  it 
is  denned  to  be  "the  infliction  of  grievous  bodily  injury  or  grievous 

52  Simon  v.  Simon,  34  Pa.  Super.  Ct.  182,  holding  that  the  communication 
of  a  loathsome  disease  by  a  husband  to  a  wife  is  such  an  indignity  to  her 
person,  rendering  "her  condition  intolerable  and  life  burdensome,"  as  will 
entitle  her  to  a  divorce. 


250  SEPARATION  AND  DIVORCE  (Ch.  7 

mental  suffering."  In  others  it  is  declared  that  the  treatment  must 
be  such  as  to  injure  health  or  endanger  reason;53  in  others,  so 
cruel  as  to  endanger  life. 

It  was  originally  the  general  rule,  due  perhaps  to  the  peculiar 
wording  of  the  statutes,  that  cruelty,  to  be  a  ground  of  divorce, 
must  consist  of  physical  cruelty,  either  direct  or  consequential, 
without  personal  violence,  and  this  doctrine  persists  in  some 
states.54  But  as  will  presently  appear  this  rule  has  been  greatly 
relaxed  in  most  jurisdictions,  and  the  infliction  of  mental  suffering 
is  recognized  as  a  form  of  cruelty  as  well  as  physical  violence.56 

It  is  generally  conceded  that,  in  order  to  constitute  cruelty,  direct 
actual  violence  is  not  necessary.56  Any  conduct  which  is  attended 
with  bodily  harm,  and  which  renders  it  impossible  or  unsafe  to  dis- 
charge the  duties  of  married  life,  may  constitute  cruelty  as  fully 
as  direct  violence.67  The  test  is  whether,  under  the  circumstances 

»»  See  Robinson  v.  Robinson,  66  N.  H.  600,  23  Atl.  362,  15  L.  R.  A.  121,  49 
Am.  St.  Rep.  632 ;  RADER  v.  RADER,  136  Iowa,  223,  113  N.  W.  817,  Cooley 
Cas.  Persons  and  Domestic  Relations,  133. 

•'••«  Whitlock  v.  Whitlock,  268  111.  218,  109  N.  E.  6,  reversing  187  111.  App. 
165 ;  Casey  v.  Casey,  83  N.  J.  Eq.  603,  93  Atl.  720 ;  TRENCHARD  v.  TREN- 
CHARD,  245  111.  313,  92  N.  E.  243,  Cooley  Cas.  Persons  and  Domestic  Rela- 
tions, 131. 

55  See  post,  p.  252. 

66  RADER  v.  RADER,  136  Iowa,  223, 113  N.  W.  817,  Cooley  Cas.  Persons  and 
Domestic  Relations,   133;    Luettjobann  v.   Luettjobann,  147  Iowa,  286,   126. 
N.  W.  172;    Root  v.  Root.  164  Mich.  638,  130  N.  W.  194,  32  L.  R.  A.  (X.  S.) 
837,  Ann.  Cas.  1012B,  740 ;    Carr  v.  Carr,  171  Ala.  600,  55  South,  96 ;    Miller 
v.  Miller,  89  Neb.  239,  131  N.  W.  203,  34  L.  R.  A.  (N.  S.)  360;    Thompson  v. 
Thompson,  32  N.  D.  530,  156  N.  W.  492 ;    Lyon  v.  Lyon,  39  Okl.  Ill,  134  Pac. 
650. 

67  Brown  v.  Brown,  129  Ga.  246,  58  S.  E.  825;    Williams  v.  Williams,  101 
Minn.  400,  112  N.  W.  528 ;   Carr  v.  Carr,  171  Ala.  600,  55  South.  96 ;   Humber 
v.   Humber,   109  Miss.  216,  08  South.  161;    Knapp  v.   Knapp,  23  Cal.  App. 
10,  136  Pac.  719.    It  is  cruelty  in  a  husband  to  refuse  his  wife  the  necessaries 
of  life  when  it  is  in  his  power  to  supply  them.    Dysart  v.  Dysart,  1  Rob.  Ecc. 
106,  111,  125;    Smedley  v.  Smedley,  30  Ala.  714;    Whitacre  v.  Whltacre,  64 
Mich.  232,  31  N.  W.  327 ;    Eastes  v.  Eastes,  79  Ind.  363 ;    Butler  v.  Butler,  1 
Pars.  Eq.  Cas.  (Pa.)  329.     It  is  cruelty  to  subject  unnecessarily  the  wife  to 
conditions  imposing  great  hardship  and  privation  as  by  lack  of  proper  sup- 
port.   RADER  v.  RADER,  136  Iowa,  223,  113  N.  W.  817,  Cooley  Cas.  Persons 
and  Domestic  Relations,  133;    Dean  v.  Dean,  181  Mich.  498,  148  N.  W.  179. 
It  is  cruelty  for  a  husband  to  have  intercourse  with  his  wife  when  he  knows 
that  he  has  a  venereal  disease,   and  infect  her  with  it,  and  vice  versa. 
Collett   v.   Collett.  1   Curt.   Ecc.   678;    Anon.,   17   Abb.   N.   C.    (N.   Y.)    231; 
Carbajal   v.    Fernandez,    130   La.    812,    58    South.    581;     Rehart    v.    Rehart 
(Or.)   25  Pac.   775.     So   where   a   husband    compels  his   wife   to  submit   to 
excessive    sexual    intercourse,    with    knowledg-e    of    injury    to    her    health. 
Mayhew  v.  Mayhew,  61  Conn.  233,  23  Atl.  9G6,  29  Am.  St  Rep.  195;    Shaw 


§§  100-102)  GROUNDS   FOE  DIVORCE  251 

and  conditions  shown  to  exist,  the  complainant  could  with  safety  to 
person  and  health  continue  to  live  with  defendant.58  Threats  of 
violence  made  in  earnest,  and  which  indicate  an  intention  to  do 
bodily  harm,  are  sufficient.  "The  court  is  not  to  wait  till  the  hurt 
is  actually  done."  B9  On  the  other  hand,  mere  threats  not  intended 
to  be  carried  out,  and  not  furnishing  reasonable  grounds  for  appre- 
hension of  bodily  injury,  are  insufficient.60  What  must  be  the  ex- 
tent of  the  violence  offered,  or  what  will  reasonably  excite  appre- 
hension, will  depend  upon  the  circumstances  of  each  case.  The  sta- 
tion in  life  and  situation  of  the  parties  and  all  the  attendant  circum- 
stances will  be  taken  into  consideration.  A  blow  between  parties  in 
the  lower  conditions  and  in  the  highest  stations  of  life  has  a  very 
different  aspect.61  A  single  act  of  cruelty  may  be  so  severe  as  to 

v.  Shaw,  17  Conn.  ISO ;  Youngs  v.  Youngs,  33  111.  App.  223 ;  Grant  v.  'Grant, 
53  Minn.  181,  54  N.  W.  1059.  The  denial  of  intercourse  is  not  cruelty  on  the 
part  of  either  the  husband  or  the  wife.  D'Aguilar  v.  D'Aguilar,  1  Hagg.  Ecc. 
773 ;  Cousen  v.  Cousen,  4  Swab.  &  T.  164  ;  Cowles  v.  Cowles,  112  Mass.  298 ;  Loh- 
muller  v.  Lohmuller  (Tex.  Civ.  App.)  135  S.  W.  751;  Pinnebad  v.  Pinnebad,  134 
Ga.  496,  68  S.  E.  73 ;  Magill  v.  Magill,  3  Pitsb.  R,  (Pa.)  25 ;  Johnson  v.  John- 
son, 31  Pa.  Super.  Ct.  53.  But  see  Campbell  v.  Campbell,  149  Mich.  147,  112  N. 
W.  481,  14  Detroit  Leg.  N.  284,  119  Am.  St.  Rep.  660.  Where  a  husband  had 
compelled  his  wife  to  submit  to  two  abortions,  and  insisted  that  she  should 
submit  to  a  third  and  that  she  should  bear  no  children,  as  a  condition  to  the 
continuance  of  the  marital  relation,  such  conduct  constituted  extreme  cruel- 
ty, entitling  the  wife  to  a  divorce.  Dunn  v.  Dunn,  150  Mich.  476,  114  N.  W. 
385,  14  Detroit  Leg.  N.  767.  And  see  Sheldon  v.  Sheldon,  146  App.  Div.  430, 
131  N.  Y.  Supp.  291. 

s  3  Maxwell  v.  Maxwell,  69  W.  Va.  414,  71  S.  E.  571. 

B  9  Evans  v.  Evans,  1  Hagg.  Const.  35;  Oliver  v.  Oliver,  Id.  361,  364;  Myt- 
ton  v.  Mytton,  11  Prob.  Div.  141;  Bailey  v.  Bailey,  97  Mass.  373;  Beebe  v. 
Beebe,  10  Iowa,  133;  Rhame  v.  Rhame,  1  McCord  Eq.  (S.  C.)  197,  16  Am. 
Dec.  597;  Whispell  v.  Whispell,  4  Barb.  (N.  Y.)  217;  Kennedy  v.  Kennedy, 
,  60  How.  Prac.  (N.  Y.)  151 ;  Id.,  73  N.  Y.  369 ;  Graecen  v.  Graecen,  2  N.  J.  Eq. 
459;  Hughes  v.  Hughes,  19  Ala.  307;  Freeman  v.  Freeman,  31  Wis.  235; 
Harratt  v.  Harratt,  7  N.  H.  196,  26  Am.  Dec.  730;  Griffith  v.  Griffith,  77  Neb. 
180,  108  N.  W.  981 ;  Beekman  v.  Beekman,  53  Fla.  858,  43  South.  923 ;  Wil- 
liams v.  Williams,  101  Minn.  400.  112  N.  W.  528.  In  this  case  it  was  also 
held  that  repeated  charges  made  by  the  wife  against  the  husband,  not  shown 
to  have  been  based  on  reasonable  cause,  published  by  her  for  many  years  in 
private  and  public,  rendering  him  a  subject  of  discussion  and  ridicule,  re- 
sulting in  injury  to  his  business  and  in  the  practical  separation  of  the  par- 
ties, constitute  cruel  and  inhuman  treatment,  entitling  the  husband  to  a 
divorce. 

eo  Evans  v.  Evans,  1  Hagg.  Const.  35;  Eshbach  v.  Eshbach,  23  Pa.  343; 
Close  v.  Close,  24  N.  J.  Eq.  338;  Shell  v.  Shell,  2  Sneed  (Teiin.)  716;  Coursey 
v.  Coursey,  60  111.  186;  Ramsey  v.  Ramsey,  162  Ky.  741,  172  S.  W.  1082; 
Uhlmann  v.  Uhlmann,  17  Abb.  N.  C.  (N.  Y.)  236. 

6i  Evans  v.  Evans,  1  Hagg.  Const.  35;   Westmeath  v.  Westmeath,  2  Hagg. 


252  SEPARATION  AND  DIVORCE  (Cll.  7 

justify  a  divorce  on  the  ground  of  cruelty,62  but,  as  a  rule,  it  is  not 
sufficient.98  A  single  act  committed  in  a  sudden  passion  might  not 
constitute  cruelty,  when  the  same  act  committed  as  the  result  of  a 
deliberate,  fixed  intention  to  abuse  would  suffice.84 

There  are  some  cases  which  apparently  recognize  as  a  ground  of 
divorce,  under  the  statutes,  mere  mental  suffering  caused  by  abu- 
sive or  unkind  treatment.65  And  in  several  states,  where  the  courts 
do  not  recognize  such  a  ground  generally,  they  do  recognize  as 
cruelty  a  false  accusation  of  adultery  made  by  a  husband  against 

Ecc.  Supp.  1,  p.  72;  Barrere  v.  Barrere,  4  Johns.  Ch.  (N.  Y.)  187;  Kline  v. 
Kline,  50  Mich.  438,  15  N.  W.  541 ;  Zweig  v.  Zweig,  46  Ind.  App.  594,  93  N.  B. 
234 ;  Fleytas  v.  Pigneguy,  9  La.  419 ;  Donald  v.  Donald,  21  Fla.  571. 

62  Reeves  v.  Reeves,  3  Swab.  &  T.  139;  French  v.  French,  4  Mass.  587; 
Miller  v.  Miller,  72  Tex.  250,  12  S.  W.  167 ;  Russell  v.  Russell,  37  Pa.  Super. 
Ct.  348;  MacDonald  v.  MacDonald,  155  Gal.  665,  102  Pac.  927,  25  L.  R.  A. 
(N.  S.)  45. 

«s  Holden  v.  Holden,  1  Hagg.  Const.  453 ;  Smallwood  v.  Smallwood,  2 
Swab.  &  T.  397;  Fleytas  v.  Pigneguy,  9  La.  419;  Lauber  v.  Mast.  15  La. 
'Ann.  593 ;  Jenness  v.  Jenness,  60  N.  H.  211 ;  Richards  v.  Richards,  1  Grant, 
Gas.  (Pa.)  389.  In  some  states  the  statute  requires  "repeated  cruelty."  Hen- 
derson v.  Henderson,  88  111.  248.  Mere  impulsive  acts  at  long  intervals  of 
time  do  not  constitute  cruelty.  Rebstock  v.  Rebstock  (Sup.)  144  N.  Y.  Supp. 
289. 

«*  Pillar  v.  Pillar,  22  Wis.  658;  Cook  v.  Cook,  11  N.  J.  Eq.  195;  Finley  v. 
Finley,  9  Dana  (Ky.)  52,  33  Am.  Dec.  528;  Moyler  v.  Moyler,  11  Ala.  620. 
Isolated  and  infrequent  acts  of  cruelty  by  a  husband  to  his  wife,  culminating 
in  physical  violence  of  a  dangerous  character,  accompanied  by  abusive  words 
and  a  disavowal  of  any  affection  for  her,  are  sufficient  grounds  of  divorce 
from  bed  and  board,  especially  where  the  wife  is  a  weak  and  immature 
child  of  16  years.  Boyle  v.  Boyle  (N.  J.  Ch.)  67  Atl.  690. 

85  Carpenter  v.  Carpenter,  30  Kan.  744,  2  Pac.  122,  46  Am.  Rep.  108; 
Barnes  v.  Barnes,  95  Cal.  171,  30  Pac.  399,  16  L.  R.  A.  660 ;  Fleming  v.  Flem- 
ing, 95  Cal.  430,  30  Pac.  566,  29  Am.  St  Rep.  124;  Outlaw  v.  Outlaw,  118, 
Md.  498,  84  Atl.  383 ;  Emery  v.  Emery,  181  Mich.  146,  147  N.  W.  452 ;  Ather- 
ton  v.  Atherton,  82  Hun,  179,  31  N.  Y.  Supp.  977 ;  Waltermire  v.  Waltermire, 
110  N.  Y.  183,  17  N.  E.  739.  "It  was  formerly  thought  that  to  constitute  ex-" 
treme  cruelty,  such  as  would  authorize  the  granting  of  a  divorce,  physical 
violence  is  necessary;  but  the  modern  and  better  considered  cases  have  re- 
pudiated this  doctrine,  as  taking  too  low  and  sensual  a  view  of  the  mar- 
riage relation,  and  it  is  now  very  generally  held  that  any  unjustifiable  con- 
duct on  the  part  of  either  the  husband  or  wife  which  so  grievously  wounds 
.the  feelings  of  the  other,  or  so  utterly  destroys  the  peace  of  mind  of  the 
other,  as  to  seriously  impair  the  health,  *  *  *  or  such  as  utterly  de- 
stroys the  legitimate  ends  and  objects  of  matrimony,  constitutes  extreme 
cruelty,  under  the  statute."  Carpenter  v.  Carpenter,  supra.  As  the  cases 
cited  in  the  following  notes  will  show,  the  latter  part  of  the  above  quota- 
tion is  not,  as  it  purports  to  be,  in  accord  with  the  weight  of  opinion.  It 
should  be  noted,  in  connection  with  the  California  cases  cited  above,  that 
the  California  statute  defines  "extreme  cruelty"  to  be  the  infliction  of  griev- 


§§  100-102)  GROUNDS  FOR  DIVORCE 

his  wife.66  But  from  a  comparison  of  the  decisions  and  a  careful 
consideration  of  the  facts  and  circumstances  existing  in  the  cases 
it  would  appear  that  mere  mental  suffering,  caused  by  unkind, 
abusive,  or  insulting  words,  is  not  enough,  but  there  must  be  such 
degree  of  mental  disturbance  as  to  threaten  bodily  harm  or  to  ren- 
der the  continued  existence  of  the  marital  relation  dangerous  to- 
the  mental  or  physical  health.67 

ous  bodily  Injury  "or  grievous  mental  suffering."  See  Barnes  v.  Barnes, 
supra.  Rev.-  Codes  N.  D.  1905,  §  4051,  contains  the  same  provision.  See 
Mahnken  v.  Mahnken,  9  N.  D.  188,  82  N.  W.  870,  and  Mosher  v.  Mosher,  16 
N.  D.  269,  113  N.  W.  99,  12  L.  R.  A.  (N.  S.)  820,  125  Am.  St.  Rep.  654.  In  the 
latter  case  it  was  said  that  the  habitual  use  of  profane  language  and  telling 
obscene  stories  by  the  wife  to  the  husband  and  to  third  parties  in  his  pres- 
ence and  against  his  wishes  furnishes  a  ground  for  divorce,  where  the  char- 
acteristics of  the  husband  are  such  that  this  course  of  conduct  causes  him 
humiliation  and  grievous  mental  suffering. 

ee  Smith  v.  Smith,  8  Or.  100;  Eggerth  v.  Eggerth,  15  Or.  626,  16  Pac.  650; 
Wagner  v.  Wagner,  36  Minn.  239,  30  N.  W.  766 ;  Palmer  v.  Palmer,  45  Mich. 
150,  7  N.  W.  760,  40  Am.  Rep.  461;  Blurock  v.  Blurock,  4  Wash.  495,  30  Pac. 
637 ;  Jones  v.  Jones,  60  Tex.  451 ;  Bahn  v.  Bahn,  62  Tex.  518,  50  Am.  Rep. 
539;  Clinton  v.  Clinton,  60  Mo.  App.  296;  Waltermire  v.  Waltermire,  110 
N.  Y.  183,  17  N.  E.  739 ;  De  Meli  v.  De  Meli,  120  N.  Y.  485,  24  N.  E.  996,  17 
Am.  St.  Rep.  652 ;  Fowler  v.  Fowler,  58  Hun,  601,  11  N.  Y.  Supp.  419.  But 
see  Cheatham  v.  Cheatham,  10  Mo.  296;  Wetherington  v.  Wetherington,  57 
Fla.  551,  49  South.  549;  Cooper  v.  Cooper,  51  Ind.  App.  374,  99  N.  E.  782; 
Hertz  v.  Hertz,  126  Minn.  65,  147  N.  W.  825 ;  Votaw  v.  Votaw,  90  Neb.  699, 
134  N.  W.  410;  MacDonald  v.  MacDonald,  155  Cal.  665,  102  Pac.  927,  25  L. 
R.  A.  (N.  S.)  45;  Morris  v.  Morris,  57  Wash.  465,  107  Pac.  186.  But  see, 
Gordon  v.  Gordon,  77  N.  H.  597,  92  Atl.  546;  Stewart  v.  Stewart,  175  Ind. 
412,  94  N.  E.  564. 

67  Evans  v.  Evans,  1  Hagg.  Const.  35;  Harris  v.  Harris,  2  Phillim.  Ill,  1 
Eng.  Ecc.  R.  204;  Barlee  v.  Barlee,  1  Addams,  Ecc.  301;  Oliver  v.  Oliver,  1 
Hagg.  Const.  361;  Kirkman  v.  Kirkman,  Id.  409;  Detrick's  Appeal,  117  Pa. 
452,  11  Atl.  882 ;  Shaw  v.  Shaw,  17  Conn.  189 ;  Boggess  v.  Boggess,  4  Dana 
(Ky.)  307;  Daiger  v.  Daiger,  2  Md.  Ch.  335;  Close  v.  Close,  24  N.  J.  Eq. 
338;  Henderson  v.  Henderson,  88  111.  248;  Moyler  v.  Moyler,  11  Ala.  620; 
Lucas  v.  Lucas,  2  Tex.  112 ;  Kenley  v.  Kenley,  2  How.  (Miss.)  751 ;  Maben  v. 
Maben,  72  Iowa,  658,  34  N.  W.  462;  Vanduzer  v.  Vanduzer,  70  Iowa,  614,  31 
N.  W.  956;  Cheatham  v.  Cheatham,  10  Mo.  296;  Disborough  v.  Disborough 
(N.  J.  Ch.)  26  Atl.  852 ;  Brown  v.  Brown,  129  Ga.  246,  58  S.  E.  825 ;  De  Cloedt 
v.  De  Cloedt,  24  Idaho,  277,  133  Pac.  664 ;  Zweig  v.  Zweig,  46  Ind.  App.  594, 
93  N.  E.  234;  Rowe  v.  Rowe,  84  Kan.  696,  115  Pac.  553;  Williams  v.  Wil- 
liams, 101  Minn.  400,  112  N.  W.  528;  Mathewson  v.  Mathewson,  81  Vt.  173, 
69  Atl.  646,  18  L.  R.  A.  (N.  S.)  300;  Prall  v.  Frail,  58  Fla.  496,  50  South.  867, 
26  L.  R.  A.  (N.  S.)  577;  Preuitt  v.  Preuitt,  88  Neb.  124,  129  N.  W.  175; 
Kinsey  v.  Kinsey  (Sup.)  124  N.  Y.  Supp.  30;  Lyon  v.  Lyon,  39  Okl.  Ill,  134 
Pac.  650;  Cevene  v.  Cevene,  143  Wis.  393,  127  N.  W.  942.  The  use  of  abu- 
sive language  may  be  shown  in  connection  with  acts  or  threats  of  physical 
violence,  as  characterizing  them.  Dysart  v.  Dysart,  1  Rob.  Ecc.  106;  Gibbs 
v.  Gibbs,  18  Kan.  419;  Day  v.  Day,  56  N.  H.  316;  Farnham  v.  Farnham,  73 


254  SEPARATION   AND   DIVORCE  (Ch.  7 

In  a  leading  case  Lord  Stowell  said :  "What  merely  wounds  the 
mental  feelings  is  in  few  cases  to  be  admitted,  where  they  are  not 
accompanied  with  bodily  injury,  either  actual  or  menaced.  Mere 
austerity  of  temper,  petulance  of  manners,  rudeness  of  language,  a 
want  of  civil  attention  and  accommodation,  even  occasional  sallies 
of  passion,  if  they  do  not  threaten  bodily  harm,  do  not  amount  to 
legal  cruelty.  They  are  high  moral  offenses  in  the  marriage  state, 
undoubtedly,  not  innocent,  surely,  in  any  state  of  life,  but  still  they 
are  not  that  cruelty  against  which  the  law  can  relieve.  Under  such 
misconduct  of  either  of  the  parties — for  it  may  exist  on  one  side  as 
well  as  on  the  other — the  suffering  party  must  bear  in  some  degree 
the  consequences  of  an  injudicious  connection;  must  subdue  by 
decent  resistance  or  by  prudent  conciliation ;  and,  if  this  cannot  be 
done,  both  must  suffer  in  silence.  And  if  it  be  complained  that,  by 
this  inactivity  of  the  courts,  much  injustice  may  be  suffered,  and 
much  misery  produced,  the  answer  is  that  courts  of  justice  do  not 
pretend  to  furnish  cures  for  all  the  miseries  of  human  life.  They 
redress  or  punish  gross  violations  of  duty,  but  they  go  no  further. 
They  cannot  make  men  virtuous;  and,  as  the  happiness  of  the 
world  depends  upon  its  virtue,  there  may  be  much  unhappiness  in  it 
which  human  laws  cannot  undertake  to  remove."  68  "The  law  does 
not  permit  courts  to  sever  the  marriage  bond,  and  to  break  up 
households,  merely  because  parties,  from  unruly  tempers  or  mutual 
wranglings,  live  unhappily  together.  It  requires  them  to  submit  to 
the  ordinary  consequences  of  human  infirmities  and  of  unwise  seled- 
tions;  and  the  misconduct  which  will  form  a  good  ground  for  a 
legal  separation  must  be  very  serious,  and  such  as  amounts  to  ex- 
treme cruelty,  entirely  subverting  the  family  relations,  by  rendering 
the  association  intolerable."  69  "Although  the  character  of  the  ill 
treatment,  whether  it  operates  directly  upon  the  body,  or  primarily 
upon  the  mind  alone,  and  all  the  attending  circumstances  are  to  be 
considered  for  the  purpose  of  estimating  the  degree  of  cruelty,  yet 
the  final  test  of  the  sufficiency,  as  a  cause  of  divorce,  must  be  its  ac- 
tual or  reasonably  apprehended  injurious  effect  upon  the  body  or 

111.  497;  Kennedy  v.  Kennedy,  73  N.  Y.  369;  Johns  v.  Johns,  57  Aflss.  530; 
Goodrich  v.  Goodrich,  44  Ala.  670;  Thomas  v.  Thomas,  20  N.  J.  Eq.  97; 
Straus  v.  Straus,  67  Hun,  491,  22  N.  Y.  Supp.  567. 

«s  Evans  v.  Evans,  1  Hagg.  Const.  35. 

«» (hooper  v.  Cooper,  17  Mich.  205,  97  Am.  Dec.  182.  See,  also,  Olson  v. 
Olson,  130  Iowa,  353,  106  N.  W.  758,  holding  that  incompatibility  of  temper 
is  110  ground  for  divorce. 


§§  100-102)  GROUNDS  FOR   DIVORCE  255 

health  of  the  complaining  party.  *  *  *  The  practical  view  of 
the  law  is  that  a  degree  of  cruelty  which  cannot  be  perceived  to 
injure  the  body  or  the  health  of  the  body  'can  be  practically  en- 
dured,' and  must  be  endured  if  there  is  no  other  remedy  than  by 
divorce,  because  no  'scale'  by  which  to  gauge  the  .purely  mental 
susceptibilities  and  sufferings  has  yet  been  invented  or  discovered, 
except  such  as  indicate  the  degrees  thereof  by  their  perceptible 
effects  upon  the  physical  organization  of  the  body."  70 

When  the  mental  suffering  is  so  great  that  it  preys  upon  the  mind 
and  undermines  the  health  though  the  suffering  is  caused  by  words 
and  conduct,  unaccompanied  by  any  act  of  physical  violence,  the 
result  is  bodily  harm,  and  hence  such  conduct  constitutes  legal 
cruelty.  The  tendency  of  modern  decisions,  as  the  effect  of  mental 
suffering  upon  bodily  health  has  come  to  be  more  fully  understood, 
is  towards  much  greater  latitude  than  is  found  in  the  earlier  cases, 
in  granting  divorces  in  cases  of  so-called  "mental  cruelty."  With- 
out repudiating  the  doctrine  that  the  injury  must  be  physical,  the 
courts  recognize  that  legal  cruelty  may  exist  in  systematic  abuse, 
humiliating  insults  and  annoyances,  causing  mental  suffering  and 
consequent  ill  health,  as  fully  as  in  acts  of  violence.71  "A  husband 
may,  by  a  course  of  humiliating  insults  and  annoyances,  practiced 
in  the  various  forms  which  ingenious  malice  could  readily  demise, 
eventually  destroy  the  life  or  health  of  his  wife,  although  such  con- 
duct may  be  unaccompanied  by  violence,  positive  or  threatened. 
Would  the  wife  have  no  remedy  in  such  circumstances  under  our 

TO  Waldron  v.  Waldron,  85  Cal.  251,  24  Pac.  649,  858,  9  L.  R.  A.  487.  In  a 
later  case  in  California  the  court  said  that  this  quotation  was  too  narrow 
under  their  statute  declaring  extreme  cruelty  to  be  the  infliction  of  grievous 
bodily  injury,  "or  grievous  mental  suffering."  Barnes  v.  Barnes,  95  Cal.  171, 
30  Pac.  299,  16  L.  R.  A.  660;  Fleming  v.  Fleming,  95  Cal.  430,  30  Pac.  566, 
29  Am.  St.  Rep.  124. 

7i  Butler  v.  Butler,  1  Pars.  Eq.  Cas.  (Pa.)  329;  Kelly  v.  Kelly,  2  Prob.  & 
Div.  31;  Walmesley  v.  Walmesley,  1  Reports,  529,  69  Law  T.  (N.  S.)  152; 
Harding  v.  Harding,  36  Colo.  106,  85  Pac.  423 ;  Brown  v.  Brown,  129  Ga.  246, 
58  S.  E.  825;  Bush  v.  Bush  (Tex.  Civ.  App.)  103  S.  W.  217;  Bailey  v.  Bai- 
ley, 97  Mass.  373;  Kelly  v.  Kelly,  18  Nev.  49,  1  Pac.  194,  51  Am.  Rep.  732; 
Fowler  v.  Fowler,  58  Hun,  601,  11  N.  Y.  Supp.  419;  Cole  v.  Cole,  23  Iowa, 
433 ;  Day  v.  Day,  84  Iowa,  221,  50  N.  W.  979 ;  Williams  v.  Williams,  23  Fla. 
324,  2  South.  768;  Powelson  v.  Powelson,  22  Cal.  358;  Wolff  v.  Wolff,  102 
Oal.  433,  36  Pac.  767,  1037 ;  Sylvis  v.  Sylvis,  11  Colo.  319,  17  Pac.  912 ;  Rosen- 
feld  v.  Rosenfeld,  21  Colo.  16,  40  Pac.  49 ;  Latham  v.  Latham,  30  Grat.  (Va.) 
307;  Freeman  v.  Freeman,  31  Wis.  235,  249;  Glass  v.  Wynn,  76  Ga.  319; 
Leach  v.  Leach  (Me.)  8  Atl.  349;  Carpenter  v.  Carpenter,  30  Kan,  712,  2 
Pac.  122,  46  Am.  Rep.  10S. 


256  SEPARATION  AND   DIVORCE  (Ch.  7 

divorce  laws,  because  actual  or  threatened  personal  violence  formed 
no  element  in  such  cruelty?  The  answer  to  this  question  seems 
free  from  difficulty,  when  the  subject  is  considered  with  reference 
to  the  principles  on  which  the  divorce  for  cruelty  is  predicated. 
The  courts  intervene  to  dissolve  the  marriage  bond  under  this  head, 
for  the  conservation  of  the  life  or  health  of  the  wife,  endangered  by 
the  treatment  of  the  husband.  The  cruelty  is  judged  from  its  ef- 
fects, not  solely  from  the  means  by  which  those  effects  are  prpduc- 
ed.  To  hold  absolutely  that,  if  a  husband  avoids  positive  or  threat- 
ened personal  violence,  the  wife  has  no  legal  protection  against  any 
means  short  of  these  which  he  may  resort  to,  and  which  may  de- 
stroy her  life  or  health,  is  to  invite  such  a  system  of  infliction  by 
the  indemnity  given  the  wrongdoer.  The  more  rational  application 
of  the  doctrine  of  cruelty  is  to  consider  a  course  of  marital  unkind- 
ness  with  reference  to  the  effect  it  must  necessarily  produce  on  the 
life  or  health  of  the  wife,  and,  if  it  has  been  such  as  to  affect  or  in- 
jure either,  to  regard  it  as  true  legal  cruelty."  T2 

A  divorce  on  the  ground  of  cruelty  will  not  be  granted  if  the  ill 
treatment  has  been  caused  by  the  misconduct  of  the  plaintiff.  Cru- 
elty, as  a  foundation  for  a  divorce,  must  be  unmerited  and  unpro- 
voked. "If  her  conduct  be  totally  incompatible  with  the  duty  of  a 
wife,  if  it  be  violent  and  outrageous,  if  it  justly  provoke  the  indigna- 
tion of  the  husband,  and  cause  danger  to  his  person,  she  must  re- 
form her  own  disposition  and  manner."  7S  But  although  the  plain- 
tiff may  have  brought  the  ill  treatment  of  which  she  complains 
upon  herself,  if  it  is  wholly  out  of  proportion  to  her  offense,  intem- 
perate, and  inexcusably  severe,  her  misconduct  will  not  bar  her 
right  to  relief.7* 

«  Butler  v.  Butler,  1  Pars.  Eq.  Cas.  (Pa.)  329. 

"Waring  v.  Waring.  2  Phlllira.  132:  Poor  v.  Poor,  8  N.  H.  307,  29  Am. 
Dec.  6C4 ;  Skinner  v.  Skinner,  5  Wis.  449 ;  Von  Glahn  v.  Von  Glahn,  46  111. 
184;  Knight  v.  Knight,  31  Iowa,  451;  Jones  v.  Jones.  189  Ala.  286,  06  South. 
4;  Pittis  v.  Pittis,  82  N.  J.  Eq.  635,  89  Atl.  749;  Hopkins  v.  Hopkins.  34  S. 
D.  637,  150  N.  W.  293;  Moulton  v.  Moulton,  2  Barb.  Ch.  (N.  Y.)  309;  Richards 
v.  Richards,  37  Pa.  225;  Daiger  v.  Daiger,-  2  Md.  Ch.  335;  Childs  v.  Childs, 
49  Md.  509;  Johnson  v.  Johnson,  14  Cal.  460;  Reed  v.  Reed,  4  Nev.  395; 
Harper  v.  Harper,  29  Mo.  301.  Violence  committed  in  a  quarrel  in  which 
both  are  at  fault,  and  resulting  in  equal  injury  to  both,  is  not  ground  for  di- 
vorce. Soper  v.  Soper,  29  Mich.  305 ;  Castanedo  v.  Fortier,  34  La.  Ann.  135; 
Maben  v.  Maben,  72  Iowa,  658,  34  N.  W.  462. 

t*  Evans  v.  Evans,  1  Hagg.  Const.  35;  Waring  v.  Waring,  2  Phillim.  132; 
Westmeath  v.  Westmeath,  2  Hagg.  Ecc.  Supp.  1,  72;  Hawkins  v.  Hawkins, 
65  Md.  104,  3  Atl.  749 :  King  v.  King,  28  Ala.  315 ;  Segelbaum  v.  Segelbaura, 
39  Minn.  258,  39  N.  W.  492;  Eidemnuller  v.  Eideninuller,  37  CaL  364; 


§  103)  GROUNDS  FOR  DIVORCE  257 


SAME— DESERTION 

103.  In  most  states,  by  statute,  desertion  for  a  prescribed  period  is 
made  ground  for  divorce.  Desertion  is  withdrawal  from 
cohabitation  by  one  of  the  parties,  with  intent  to  abandon 
the  other,  without  the  other's  consent,  and  without  justifi- 
cation. In  detail,  to  entitle  an  abandoned  husband  or  wife 
to  a  divorce  on  the  ground  of  desertion — 

(a)  There  must  have  been  a  cessation  of  cohabitation. 

(b)  Cohabitation   must   have   ceased   for   the   entire   statutory 

period. 

(c)  There  must  have  been  an  intent  to  abandon. 

(d)  There  must  have  been  no  consent  on  the  part  of  the  aban- 

doned spouse. 

(e)  There  must  have  been  no  misconduct  on  the  part  of  the  aban- 

doned spouse  justifying  the  abandonment. 

As  was  stated  in  treating  of  the  effect  of  marriage  upon  the  per- 
sons of  the  spouses,  they  are  mutually  entitled  to  cohabitation  and 
intercourse.  It  is  true  that  in  this  country  no  suit  will -lie  for  res- 
titution of  conjugal  rights,  and  that,  in  the  absence  of  a  statute, 
there  is  no  legal  remedy  by  which  an  abandoned  spouse  can  either 
compel  the  other  to  return,  or  be  freed  from  the  marriage  tie.  An 
abandoned  wife  has  certain  powers  which  she  does  not  have  while 
cohabiting  with  her  husband,  as  the  power  to  engage  in  business 
and  contract  as  a  feme  sole,  and  the  power  to  purchase  necessaries 
on  her  husband's  credit,  if  she  can  obtain  them;  but  most  of  her 
disabilities  remain  notwithstanding  the  abandonment,  and  the 
rights  of  her  husband  in  her  property  continue.  ^ 

This  is  the  state  of  things  at  common  law,  but  it  has  been  changed 
to  some  extent  in  most  states  by  statutes  making  desertion  a 
ground  for  divorce.  Desertion  consists  in  the  wjIlfjLil-ajid_jmjus- 
tifiable  abandonment  of  one  of  the  spouses  by  the  other,  without 
the  other's  consent.75  The  length  of  time  during  which  the  deser- 

Boeck  v.  Boeck,  16  Neb.  196,  20  N.  W.  223 ;   Marsh  v.  Marsh,  64  Iowa,  667,  21 
N.  W.  130 ;    Machado  v.  Bonet,  39  La.  Ann.  475,  2  South.  49. 

7  5  Bailey  v.  Bailey,  21  Grat  (Va.)  43;  Williams  v.  Williams,  130  N.  Y. 
193,  29  N.  E.  98,  14  L.  R.  A.  220,  27  Am.  St.  Rep.  517;  Crounse  v.  Crounse, 
108  Va.  108,  60  S.  E.  627;  Barnett  v.  Barnett,  27  Ind.  App.  466,  61  N.  E. 
737;  Burk  v.  Burk,  21  W.  Va.  445;  Rose  v.  Rose,  50  Mich.  92,  14  N.  W.  711; 
Bennett  v.  Bennett,  43  Conn.  313 ;  Hardenbergh  v.  Hardenbergh,  14  Cal.  654 ; 
TIFF.P.&  D.REL.(3o  ED.)— 17 


258  SEPARATION  AND  DIVORCE  (Ch.  7 

tion  must  last  varies  under  the  statutes  of  the  different  states.  In 
some  it  must  last  for  three  years,  while  in  others  it  need  last  for 
one  year  only.  To  constitute  such  a  desertion  as  will  entitle  the 
aggrieved  spouse  to  a  divorce,  there  must  be  (1)  a  cessation  of 
cohabitation  (2)  for  the  time  prescribed  by  the  statute ;  (3)  an  in- 
tention to  abandon;  (4)  want  of  consent  on  the  part  of  the  party 
abandoned";  and  (5)  the  abandonment  must  be  unjustifiable.  These 
are  the  elements  of  a  "desertion,"  as  the  term  is  used  in  the  divorce 
laws.78 

Abandonment  and  Cessation  of  Cohabitation 

To  cohabit  is  to  live  together  as  husband  and  wife,77  and  the  ces- 
sation of  cohabitation,  without  intent  to  resume  it,  and  without  the 
consent  of  the  other  spouse,  constitutes  desertion.78  Although  a 
husband  may  continue  to  support  his  wife,  there  is  a  cessation  of 
cohabitation  if  they  cease  to  dwell  together.  "There  is  no  more 
important  right  of  the  wife  than  that  which  secures  to  her,  in  the 
marriage  relation,  the  companionship  of  her  husband  and  the  pro- 
tection of  his  home.  His  willful  denial  of  this  right,  with  the  in- 
tentional and  permanent  abandonment  of  all  matrimonial  inter- 
course, against  her  conesnt,  is  desertion,  within  the  meaning  of 
our  statute;  and  such  conduct  is  not  relieved  by  the  fact  that  he 
has  from  time  to  time  contributed  to  her  support  and  the  support 
of  her  children."  79 


Andrade  v.  Andrade,  14  Ariz.  379,  128  Pac.  813;  Buckner  v.  Buckner,  118 
Md.  101,  84  Atl.  156,  Ann.  Cas.  1914B,  628 ;  Sergent  v.  Sergent,  33  N.  J.  Eq. 
204. 

T«  Barnett  v.  Barnett,  27  Ind.  App.  466,  61  N.  E.  737;  Plymate  v.  Ply- 
mate  (Mo.  App.)  180  S.  W.  29;  Luper  v.  Luper,  61  Or.  418,  96  Pac.  1099  ? 
Maloney  v.  Maloney,  S3  Wash.  656,  145  Pac.  631 ;  Bacon  v.  Bacon,  68  W.  Va. 
747,  70  S.  E.  762. 

"Yardley's  Estate,  75  Pa.  207;  Pollock  v.  Pollock,  71  N.  Y.  137;  ante, 
p.  75. 

TS  Middleton  v.  Middleton,  187  Pa.  612,  41  Atl.  291 ;  Ogllvie  v.  Ogilvie,  37 
Or.  171,  61  Pac.  627 ;  Todd  v.  Todd,  84  Conn.  591,  80  Atl.  717 ;  Hill  v.  Hill, 
62  Fla.  493,  56  South.  941,  39  L.  R.  A.  (N.  S.)  1117;  Taylor  v.  Taylor,  112 
Md.  666,  77  Atl.  133. 

"9  Magrath  v.  Magrath,  103  Mass.  577,  4  Am.  Rep.  579;  Brokaw  v.  Bro- 
kaw,  66  Misc.  Rep.  307,  123  N.  Y.  Supp.  317,  affirmed  in  147  App.  Div.  906, 
131  N.  Y.  Supp.  1106;  Yeatman  v.  Yeatman,  1  Prob.  &  Dlv.  489.  Likewise, 
when  a  husband  has  been  deserted  by  his  wife,  he  may  obtain  a  divorce  on 
that  ground,  though  he  has  continued  to  provide  for  her.  Macdonald  v. 
Macdonald,  4  Swab.  &  T.  242 ;  Stoffer  v.  Stoffer,  50  Mich.  491,  15  X.  W.  564 ; 
Bander's  Appeal,  115  Pa.  480,  10  Atl.  41 ;  Parker  v.  Parker,  28  111.  App.  22. 


§  103)  GROUNDS  FOR  DIVORCE  259 

There  may,  however,  be  separation  without  desertion.80  There 
must  be  a  radical  change  in  such  marital  relations  as  had  existed 
between  the  parties.  So,  if  the  parties  never  lived  together,  but  the 
wife  lived  with  her  parents  from  the  time  of  marriage,-  receiving 
visits  from  her  husband  weekly,  and  occasionally  visiting  the  home 
of  the  husband's  parents,  where  he  lived,  such  separation  was  not 
desertion.81 

Whether  refusal  of  marital  intercourse  is  desertion  is  a  question 
upon  which  the  authorities  are  conflicting.  Desertion  was  not  a 
ground  of  divorce  in  the  ecclesiastical  courts.  There  the  remedy 
was  by  suit  for  restitution  of  conjugal  rights.  Since  the  jurisdic- 
tion of  the  ecclesiastical  courts  in  that  action  extended  only  to 
enforcing  cohabitation,  and  not  to  compelling  marital  intercourse,82 
it  has  been  held,  in  analogy  to  the  suit  for  restitution  of  conjugal 
rights,  or  independently  of  such  consideration,  that  such  refusal 
4oes  not  constitute  desertion.83  Some  of  the  courts  have  taken 
the  contrary  view,  and  hold  that  refusal  of  sexual  intercourse  for 
the  period  necessary  to  constitute  desertion  under  the  statute  is 
desertion,  within  the  meaning  of  the  statute.84 

There  may  be  desertion  without  a  going  away.85  When  either 
spouse,  after  having  deserted  the  other,  offers  in  good  faith  to  re- 
turn, but  is  refused,  such  refusal,  unless  justified,  will  constitute 

so  Hall  v.  Hall,  69  W.  Va.  175,  71  S.  E.  103,  34  L.  R.  A.  (N.  S.)  758; 
Thompson  v.  Thompson,  50  Pa.  Super.  Ct.  159. 

si  Tipton  v.  Tip  ton,  169  Iowa,  182,  151  N.  W.  90,  Ann.  Gas.  1916C,  360. 

82  Forster  v.  Forster,  1  Hagg.  Const.  154. 

ss  Segelbaum  v.  Segelbaum,  39  Minn.  258,  39  N.  W.  492 ;  Fritz  v.  Fritz, 
138  111.  436,  28  N.  E.  1058,  14  L.  R.  A.  685,  32  Am.  St.  Rep.  156 ;  Reynolds  v. 
Reynolds,  68  W.  Va.  15,  69  S.  E.  381,  Ann.  Gas.  1912A,  889;  Pfanuebecker  v. 
Pfannebecker,  133  Iowa,  425,  110  N.  W.  618,  119  Am.  St.  Rep.  608,  12  Anix. 
Gas.'  543 ;  WATSON  v.  WATSON,  52  N.  J.  Eq.  349,  28  Atl.  467,  Cooley  Gas 
Persons  and  Domestic  Relations,  134;  Southwick  v.  South  wick,  97  Mass.  327, 
93  Am.  Dec.  95;  Cowles  v.  Cowles,  112  Mass.  298;  Prall  v.  Prall,  58  Fla. 
496,  50  South.  867,  26  L.  R.  A.  (N.  S.)  577 ;  Lambert  v.  Lambert,  165  Iowa, 
367,  145  N.  W.  920;  Steele  v.  Steele,  1  MacArthur  (D.  G.)  505;  Reid  v.  Reid, 
21  N.  J.  Eq.  331;  Stewart  v.  Stewart,  78  Me.  548,  7  Atl.  473,  57  Am.  Rep. 
822;  Morrison  v.  Morrison,  20  Gal.  432;  Eshbach  v.  Eshbach,  23  Pa.  343. 
See  Kennedy  v.  Kennedy,  87  111.  254.  Watson  v.  Watson  and  Reid  v.  Reid 
have  been  disapproved  in  later  New  Jersey  cases.  See  following  note. 

s*  Graves  v.  Graves,  88  Miss.  677,  41  South.  384;  Rector  v.  Rector,  78 
N.  J.  Eq.  386,  79  Atl.  295;  Raymond  v.  Raymond  (N.  J.  Ch.)  79  Atl.  430; 
Evans  v.  Evans,  93  Ky.  510,  20  S.  W.  605.  See  Heermance  v.  James,  47  Barb. 
(N.  Y.)  120;  Fishli  v.  Fishli,  2  Litt.  (Ky.)  337;  1  Bish.  Mar.,  Div.  &  Sep. 
§  1676  et  seq. 

so  Rector  v.  Rector,  78  N.  J.  Eq.  386,  79  Atl.  295. 


2GO  SEPARATION  AND  DIVORCE  (Ch.  7 

desertion.88  And  a  refusal  to  renew  cohabitation  after  a  separation 
by  consent  is,  if  the  other  elements  are  present,  a  desertion  on  the 
part  of  the  one  so  refusing.87  As  has  been  seen  in  another  place, 
the  husband  has  a  right  to  fix  the  family  domicile,  subject  to  some 
restrictions.  If,  therefore,  the  wife,  without  justifiable  cause,  re- 
fuses to  follow  him,  she  is  guilty  of  desertion.88 

But  the  right  of  the  husband  to  determine  the  family  domicile 
must  be  exercised  in  a  reasonable  manner  and  cannot  be  exercised 
arbitrarily,  nor  used  as  a  means  of  dissolving  the  marriage  rela- 
tion.89 

By  the  weight  of  authority,  if  a  husband  drives  his  wife  away 
from  him,  or  by  his  misconduct  gives  her  justifiable  cause  for  leav- 
ing him,  his  conduct  amounts  to  desertion  as  fully  as  if  he  left  her, 
and  will  support  a  suit  by  the  wife  for  a  divorce  on  that  ground.90 
The  Massachusetts  court  has  held  the  contrary ; 91  but  reason,  as 

se  Grove's  Appeal,  37  Pa.  443;  Clement  v.  Mattlson,  3  Rich.  (S.  C.)  93; 
English  v.  English,  6  Grant  (U.  C.)  580;  M'Gahay  v.  Williams,  12  Johns. 
(N.  Y.)  293;  Hague  v.  Hague,  85  N.  J.  Eq.  537,  96  Atl.  579;  Fellows  v.  Fel- 
lows, 31  Me.  342;  Creasey  v.  Creasey,  168  Mo.  App.  68,  151  S.  W.  219; 
Provost  v.  Provost,  73  N.  J.  Eq.  418,  75  Atl.  1101 ;  Peretti  v.  Peretti,  165  Cal. 
717,  134  Pac.  322;  De  Vry  v.  De  Vry,  46  Okl.  254,  148  Pac.  840;  McConnell 
v.  McConnell,  98  Ark.  193,  136  S.  W.  931,  33  L.  R.  A.  (N.  S.)  1074 ;  Walker 
v.  Laighton,  31  N.  H.  Ill ;  Hannig  v.  Hannig  (Tex.  Civ.  App.)  24  S.  W.  695. 
See  cases  cited  in  note  97,  infra. 

87  Butler  v.  Butler,  1  Pars.  Eq.  Cas.  (Pa.)  329;  Hankinson  v.  Hankinson, 
33  N.  J.  Eq.  66;  McAllister  v.  McAllister,  10  Heislt  (Tenn.)  345;  Gilbert  v. 
Gilbert,  5  Misc.  Rep.  555,  20  N.  Y.  Supp.  30. 

ssWinkler  v.  Powell,  173  Ala.  46,  55  South.  536;  Coleman  v.  Coleman,  164 
Ky.  709,  176  S.  W.  186;  Calichio  v.  Calichio,  85  N.  J.  Eq.  213,  96  Atl.  658 ; 
Sisemore  v.  Sisemore,  17  Or.  542,  21  Pac.  820.  That  a  wife  refused  to  live 
at  the  home  of  her  husband's  parents  though  willing  to  live  with  him  under 
any  other  reasonable  condition  was  not  desertion.  Marshak  v.  Marshak,  115 
Ark,  51,  170  S.  W.  567,  L.  R.  A.  1915E,  161,  Ann.  Cas.  1916E,  206.  And  see 
Garrison  v.  Garrison  (Ky.)  104  S.  W.  980. 

89  Hall  v.  Hall,  69  W.  Va.  175,  71  S.  E^  103,  34  L.  R.  A.  (N.  S.)  758.  See, 
also,  Garrison  v.  Garrison  (Ky.)  104  S.  W.  980. 

»o  Warner  v.  Warner,  54  Mich.  492,  20  N.  W.  557;  Barnett  v.  Barnett,  27 
Ind.  App.  466,  61  N.  E.  737;  Davenport  v.  Davenport,  106  Va.  736,  56  S.  E. 
562 ;  James  v.  James,  58  N.  H.  268 ;  Grove's  Appeal,  37  Pa.  443 ;  Morris  v. 
Morris,  20  Ala.  168;  Kinsey  v.  Kinsey,  37  Ala.  393;  Jones  v.  Jones,  95  Ala. 
443,  11  South.  11,  18  L.  R,  A.  95 ;  Skean  v.  Skean,  33  N.  J.  Eq.  148 ;  Palmer 
v.  Palmer,  22  N.  J.  Eq.  88,  91 ;  Levering  v.  Levering,  16  Md.  213 ;  Harding 
v.  Harding,  22  Md.  337;  Johnson  v.  Johnson,  125  111.  510,  16  N.  E.  891;  Wood 
v.  Wood,  27  N.  C.  674 ;  Weigand  v.  Weigand,  42  N.  J.  Eq.  699,  11  Atl.  113 ; 
Whitfield  v.  Whitfleld,  89  Ga.  471,  15  S.  E.  543 ;  Stiles  v.  Stiles,  52  N.  J.  Eqj. 
446,  29  Atl.  162. 

»i  Pidge  v.  Pidge,  3  Mete.  (Mass.)  257. 


§  103)  GROUNDS  FOR  DIVORCE  261 

well  as  authority,  is  against  it.  As  was  said  by  Putnam,  J.,  dis- 
senting, in  a  Massachusetts  case :  "Now,  to  all  legal  and  reasonable 
intendment,  the  wife  who  is  obliged  to  fly  from  her  husband's  vio- 
lence and  house  into  the  street,  for  her  preservation,  is  to  be  con- 
sidered to  be  there,  not  of  her  own  free  will,  but  by  reason  of  the 
force  and  violence  of  her  husband.  He  has  driven  her  from  him; 
and  I  hold  that  it  would  be  a  perversion  of  terms  to  say  that  she, 
under  those  circumstances,  deserted  him.  *  *  *  Having  done 
the  outrage,  the  husband  leaves  her  to  go  into  the  world  without 
house,  home,  or  shelter,  food  or  raiment,  support,  protection,  or 
aid  from  him.  *  *  *  I  call  this  desertion."  92 

Period  of  Abandonment 

To  entitle  an  abandoned  husband  or  wife  to  a  divorce,  the  cessa- 
tion of  cohabitation  must  continue  during  the  whole  period  pre- 
scribed by  the  statute.98  If  cohabitation  is  resumed  even  for  the 
briefest  period,  and  again  ceases,  the  period  of  desertion  must  be 
calculated  from  the  time  of  the  last  abandonment.94  Where  a  wife 
who  had  abandoned  her  husband  returned  occasionally  to  look  after 
her  children,  and  perform  domestic  duties,  it  was  held  that  this 
was  not  a  renewal  of  cohabitation ; 95  but  where  a  wife  returned 
and  performed  ordinary  domestic  duties  for  several  years,  living  in 
the  same  house  with  her  husband,  he  was  denied  a  divorce  for 
desertion.96 

Return  or  Offer  to  Return 

In  case  of  desertion  there  is  always  a  locus  pcenitentiae  until  the 
right  to  a  divorce  is  complete.  The  deserting  spouse  may,  until 
then,  return,  or  offer  to  return,  and  the  other  must  permit  it.  An 
offer  to  renew  cohabitation  made  by  the  deserting  spouse  in  good 
faith  at  any  time  before  the  separation  has  lasted  for  the  period  re- 

»2  per  Putnam,  J.,  In  Pidge  v.  Pidge,  3  Mete.  (Mass.)  257. 

»s  Surber  v.  Surber,  176  Ind.  399,  96  N.  E.  126;  Vercade  v.  Vercade,  147 
Mich.  398,  110  N.  W.  942;  Getz  v.  Getz,  81  N.  J.  Eq.  465,  88  Atl.  376;  Lu- 
per  v.  Luper,  61  Or.  418,  96  Pac.  1099;  Kirkpatrick  v.  Kirkpatrick,  81  Neb. 
627,  116  N.  W.  499,  16  L,  R.  A.  (N.  S.)  1071,  129  Am.  St.  Rep.  708. 

»4  Ex  parte  Aldridge,  1  Swab.  &  T.  88;  La  Flamme  v.  La  Flamme,  210 
Mass.  156,  96  N.  E.  62,  39  L.  R.  A.  (N.  S.)  1133;  Luper  v.  Luper,  61  Or. 
418,  96  Pac.  1099;  Burk  v.  Burk,  21  W.  Va.  445;  Grossman  v.  Grossman, 
33  Ala.  486;  Gaillard  v.  Gaillard,  23  Miss.  152;  Kennedy  v.  Kennedy,  87 
111.  250. 

»s  Rie  v.  Rie,  34  Ark.  37. 

9«  Holmes  v.  Holmes,  44  Mich.  555,  7  N.  W.  228.  And  see  Womble  v. 
Womble  (Tex.  Civ.  App.)  152  S.  W.  473. 


262  SEPARATION  AND   DIVORCE  (Ch.  7 

quired  by  the  statute  will  bar  a  divorce,  though  refused  by  the 
deserted  party.97  Indeed,  as  has  been  seen,  such  a  refusal  con- 
stitutes desertion.98  Such  an  offer,  however,  after  the  desertion 
has  lasted  for  the  statutory  period,  will  be  too  late,99  and  it  must 
be  free  from  any  improper  qualifications  and  conditions.1 

Intention  to  Abandon 

The  mere  cessation  of  cohabitation  for  the  time  prescribed  in  the 
statute  is  not  desertion,  unless  there  is  also  an  intention  to  aban- 
don. The  cessation  of  cohabitation  and  intent  to  abandon  must 
concur.2  Separation,  for  instance,  caused  by  necessary  absence 
on  business,  or  by  sickness,  or  other  necessity,  is  not  desertion, 
within  the  meaning  of  the  divorce  law.8  In  a  Connecticut  case,  it 
appeared  that  the  wife  had  lived  separate  from  her  husband  at  his 
request,  because  of  his  inability  to  furnish  a  satisfactory  support 
for  her  or  their  children.  "This,"  said  the  court,  "does  not  of  itself 
constitute  desertion  on  his  part.  For  the  purposes  of  this  case,  it 
is  sufficient  to  say  that  the  offense  of  desertion  consists  in  the 
cessation  of  cohabitation,  coupled  with  a  determination  in  the  mind 
of  the  offending  party  not  to  renew  it.  This  intent  is  the  decisive 
characteristic,  and  the  question  of  intent  is  always  a  question  of 
fact,  and  must  be  proved  either  by  direct  evidence,  or  as  the  neces- 
sary and  certain  consequence  of  other  facts  clearly  proved.  Mere 

of  Brookes  v.  Brookes,  1  Swab.  &  T.  326;  Loux  v.  Loux,  57  N.  J.  Eq.  561, 
41  Atl.  358;  Luper  v.  Luper,  61  Or.  418,  96  Pac.  1099;  Borden  v.  Borden, 
166  Cal.  469,  137  Pac.  27;  Walker  v.  Walker,  14  Cal.  App.  487,  112  Pac. 
479;  Gaillard  v.  Gaillard,  23  Miss.  152;  McClurg's  Appeal,  66  Pa.  366; 
Prather  v.  Prather,  26  Kan.  273 ;  Walker  v.  Laighton,  31  N.  H.  Ill ;  Friend 
v.  Friend,  Wright  (Ohio)  639;  Fishli  v.  Fishli,  2  Litt.  (Ky.)  337.  Compare 
Garrison  v.  Garrison,  104  S.  W.  9SO,  31  Ky.  Law  Rep.  1209.  And  see  cases 
cited  in  note  86,  supra. 

s  s Ante,  p.  259. 

ooCargill  v.  Cargill,  1  Swab.  &  T.  235;  Luper  v.  Luper,  61  Or.  418,  96 
Pac.  1099.  See  Graeff  v.  Graeff  (N.  J.  Ch.)  25  Atl.  704. 

1  Hunt  v.  Hunt,  61  Fla.  630,  54  South.  390 ;   Arinent  v.  Annent,  154  Iowa, 
573,  134  N.  W.  616. 

2  Williams  v.  Williams,  130  N.  Y.  193,  29  N.  E.  98,  14  L.  R.  A.  220,  27  Am. 
St.  Rep.  517;    Heyman  v.  Heyman,  119  App.  Div.  182,  104  N.  Y.  Supp.  227; 
Kupka  v.  Kupka,  132  Iowa,  191,  109  N.  W.  610;   Hall  v.  Hall,  69  W.  Va.  173, 
71  S.  E.  103,  34  L.  R.  A.   (N.   S.)    758;    Stevens  v.   Stevens,   123  Ky.   545, 
96  S.  W.  811 ;   Muller  v.  Muller,  125  Md.  72,  93  Atl.  404 ;   Chatterton  v.  Chat- 
terton,  132  111.  App.  31,  affirmed  231  111.  449,  83  N.  E.  161,  121  Am.  St.  Rep. 
339;    Crounse  v.  Crounse,  108  Va.  108,  60  S.  E.  627. 

3  Taylor  v.  Taylor,  28  N.  J.  Eq.  207;    Howell  v.  Howell,  64  N.  J.  Eq.  191, 
48  Atl.  510;   Walton  v.  Walton,  76  Miss.  662,  25  South.  166,  71  Am.  St.  Rep. 


§  103)  GROUNDS  FOR  DIVORCE  263 

separation  may  result  from  necessity  or  accident,  and  much  against 
the  will  of  both  parties."  * 

It  is  immaterial  that  the  intention  to  abandon  did  not  exist  at 
the  time  of  the  separation,  if  it  was  afterwards  formed  and  acted 
upon.  The  intention  not  to  return,  formed  after  separation  has 
taken  place,  accompanied  by  continuation  of  the  separation,  is 
desertion;  but  the  desertion  in  such  a  case  begins  when  the  in- 
tention is  formed.5 

That  there  was  an  intent  to  abandon  need  not  be  shown  by  direct 
evidence,  but,  like  intent  in  other  cases  in  which  it  is  material  in 
law,  may  be  inferred  from  the  circumstances.  It  may  be  presumed 
from  long  abandonment  without  apparent  cause.6  Such  an  intent, 
when  once  shown  to  have  existed,  will  be  presumed  to  have  con- 
tinued, until  the  contrary  appears.7 

Consent  of  the  Abandoned  Spouse 

Not  only  must  there  be  a  cessation  of  cohabitation  for  the  stat- 
utory period,  and  an  intent  to  abandon,  to  constitute  desertion,  but 
the  abandonment  must  be  without  the  consent  of  the  party  aban- 
doned. Nothing  is  better  settled  than  that  abandonment  or  separa- 
tion by  actual  consent — whether  such  consent  is  expressed  in  the 
form  of  an  agreement,  or  is  inferred  from  the  conduct  of  the  parties 
and  the  circumstances — cannot  be  relied  upon  as  ground  for  di- 
vorce.8 "Desertion  can  only  be  complained  of  when  it  is  against 

540.',  But  see  Elzas  v.  Elzas,  171  111.  632,  49  N.  E.  717,  where  a  contrary  rule 
is  laid  down. 

4  Bennett  v.  Bennett,  43  Conn.  313.  And  see  Bailey  v.  Bailey,  21  Grat. 
(Va.)  43;  Burk  v.  Burk,  21  W.  Va.  445;  Tipton  v.  Tipton,  169  Iowa,  182, 
151  N.  W.  90,  Ann.  Cas.  1916C,  360;  Lewis  v.  Lewis,  167  Cal.  732,  141  Pac. 
367,  52  L.  R.  A.  (N.  S.)  675;  Cook  v.  Cook,  13  N.  J.  Eq.  263;  Jennings 
v.  Jennings,  Id.  38;  McCoy  v.  McCoy,  3  Ind.  555;  Williams  v.  Williams,  3 
Swab.  &  T.  547;  Ex  parte  Aldridge,  1  Swab.  &  T.  88;  Bruner  v.  Bruner,  70 
Md.  105,  16  Atl.  385;  Keech  v.  Keech,  1  Prob.  &  Div.  641;  Williams  v.  Wil- 
liams, 21  S.  W.  529,  14  Ky.  Law  Rep.  744.  The  confinement  of  a  wife  in  an 
insane  asylum  is  not  an  abandonment  of  her  husband.  Pile  v.  Pile,  94  Ky. 
308,  22  S.  W.  215.  To  the  same  effect,  see  Porter  v.  Porter,  82  N.  J.  Eq.  400, 
89  Atl.  251. 

e  Pinkard  v.  Pinkard,  14  Tex.  356,  65  Am.  Dec.  129 ;  Foote  v.  Foote,  71 
N.  J.  Eq.  273,  65  Atl.  205;  Ahrenfeldt  v.  Ahrenfeldt.  1  Hoff.  Ch.  (N.  Y.)  47; 
Fulton  v.  Fulton,  36  Miss.  517;  Reed  v.  Reed,  Wright  (Ohio)  224;  Gate- 
house v.  Gatehouse,  1  Prob.  &  Div.  331.  See  Conger  v.  Conger,  13  N.  J. 
Eq.  286. 

e  Morrison  v.  Morrison,  20  Cal.  431 ;  Hill  v.  Hill,  87  Wash.  150,  151  Puc. 
2fi8. 

^  Bailey  v,  Bailey,  21  Grat.  (Va.)  43 ;   Gray  v.  Gray,  15  Aia.  779. 

s  Johnson  v.  Johnson,  107  Ark.  262,  154  S.  W.  503 ;    Lof tus  v.  Loftus,  134 


264  SEPARATION  AND  DIVORCE  (Ch.  7 

the  will  of  the  party  who  is  deserted  (in  this  case  the  husband),  and 
constitutes  a  grievance  which  deprives  him  of  the  society  of  his 
wife  without  his  consent  or  acquiescence.  If  there  be  a  separation 
by  consent,  that  consent  shows  that  the  parties  deem  it  no  griev- 
ance to  be  deprived  of  each  other's  society,  and  nothing  but  an 
unconditional  and  entire  resumption  of  their  early  relations  can 
restore  them  to  such  a  position  as  would  make  a  new  separation  by 
the  departure  of  the  wife,  as  in  this  case,  a  criminal  desertion."  * 

The  consent  of  the  abandoned  party,  like  consent  in  other  cases 
where  consent  is  material,  need  not  be  proved  by  direct  evidence, 
but  may  be  inferred  from  his  or  her  conduct,  or  from  the  conduct  of 
both  parties.  The  consent  must  in  some  way  be  manifested.  "The 
undisclosed  emotions  of  the  deserted  party  do  not  affect  his 
rights."  10  But  the  fact  of  consent  may  be  shown  by  his  conduct.11 

Consent  to  the  separation  may  be  inferred  from  a  course  of  con- 
duct inducing  it,12  or  from  a  course  of  conduct  promoting  the  con- 
tinuance of  a  separation  which  has  already  taken  place.18  If,  after 
a  wife  has  separated  from  her  husband,  even  without  justification, 
she  offers  to  return  to  him,  and  he  refuses  to  receive  her,  her  con- 
tinuing away  is  not  desertion.1*  And  such  refusal  may  be  inferred 

111.  App.  360;  Albee  v.  Albee,  38  Nev.  191,  147  Pac.  452;  Bacon  v.  Bacon, 
68  W.  Va.  747,  70  S.  E.  762 ;  Jones  v.  Read- Jones,  84  N.  J.  Eq.  479,  93  Atl.  580; 
Keesey  v.  Keesey,  160  Gal.  727,  117  Pac.  1054 ;  Summers  v.  Summers,  179  Ind. 
8,  100  N.  E.  71 ;  Walker  v.  Walker,  125  Md.  649,  94  Atl.  346,  Ann.  Cas.  1916B, 
934;  Cox  v.  Cox,  35  Mich.  461;  Rose  v.  Rose,  50  Mich.  92,  14  N.  W.  711; 
Beller  v.  Beller,  50  Mich.  51,  14  N.  W.  696 ;  Ford  v.  Ford,  143  Mass.  577,  10 
N.  E.  474;  Lea  v.  Lea,  8  Allen  (Mass.)  418;  Goldbeck  v.  Goldbeck,  18  N. 
J.  Eq.  42;  Benkert  v.  Benkert.  32  Cal.  467;  Secor  v.  Secor,  1  MacArthur 
(D.  C.)  630;  Crow  v.  Crow,  23  Ala.  583;  Stokes  v.  Stokes,  lMo.320;  In- 
gersoll  v.  Ingersoll,  49  Pa.  249,  88  Am.  DecTlRHrTT^uTEolTTrTuiton,  3VMiss. 
517;  Adams  v.  Adams,  66  Hun,  627,  20  N.  Y.  Supp.  765;  Townsend  v.  Town- 
send,  L.  R.  3  Prob.  &  Div.  129 ;  Fitzgerald  v.  Fitzgerald,  Id.  136 ;  Buckmaster 
v.  Buckinaster,  L.  R,  1  Prob.  &  Div.  713;  Ward  v.  Ward,  1  Swab.  &  T.  185. 
»  Cooper  v.  Cooper,  17  Mich.  205.  97  Am.  Dec.  182. 

10  Ford  v.  Ford,  143  Mass.  577,  10  N.  E.  474. 

1 1  Ford  v.  Ford,  143  Mass.  577,  10  N.  E.  474 ;   Ward  v.  Ward,  7  Pennewill 
(Del.)  364,  75  Atl.  611. 

12  Meldowney  v.  Meldowney,  27  N.  J.  Eq.  328;   Gray  v.  Gray,  15  Ala.  779; 
Gillinwaters  v.  Gillinwaters,  28  Mo.  60 ;   Dwyer  v.  Dwyer,  16  Mo.  App.  422. 

is  Taylor  v.  Taylor,  28  N.  J.  Eq.  207;  Cornish  v.  Cornish,  23  N.  J.  Eq.  208; 
Bradley  v.  Bradley,  160  Mass.  258,  35  N.  E.  482 ;  Payne  v.  Payne  (N.  J.  Ch.) 
28  Atl.  449 ;  Dwyer  v.  Dwyer,  16  Mo.  App.  422 ;  Schoen  v.  Schoen,  48  III  App. 
382. 

i*  Seeds  v.  Seeds,  139  Iowa,  717,  117  N.  W.  1069;  Conlin  v.  Conlin,  163 
Iowa,  420,  144  N.  W.  1005 ;  Silverstein  v.  Silverstein,  178  111.  App.  145. 


§  103)  GROUNDS  FOR  DIVORCE  265 

from  his  conduct  towards  her  after  the  offer  to  return.  Thus,  where 
a  wife  who  was  living  apart  from  her  husband,  each  denying  deser- 
tion, and  alleging  that  the  fault  was  on  the  part  of  the  other,  offered 
to  live  with  him  if  he  would  treat  her  as  a  wife,  and  he  saw  her 
but  once  after  the  offer,  and  never  asked  her  to  come  back,  or 
made  any  effort  to  have  her  return  and  live  with  him,  it  was  held 
that  she  was  not  guilty  of  desertion  after  the  offer.15 

Even  where  a  wife  who  has  deserted  her  husband  without  cause 
makes  no  offer  to  return  to  him,  his  conduct  may  show  that  he 
would  not  receive  her  back.  If  he  does  so  act  as  to  show  affirma- 
tively that  he  will  not  receive  her  back,  he  consents  to  the  separa- 
tion, and  cannot  rely  upon  its  continuance  as  a  ground  for  divorce. 
He  is  not  bound  to  take  any  active  steps  to  get  her  back,  and  there- 
fore his  mere  silence  will  not  amount  to  consent ; 16  but  it  is  a 
very  different  thing  if  he  shows  by  an  overt  act  that  he  is  not 
willing  to  receive  her.  On  this  principle,  it  has  been  held  that  if 
a  wife  has  deserted  her  husband,  and,  pending  the  separation,  he 
brings  suit  against  her  for  a  divorce  on  the  ground  of  adultery,  this 
shows  that  he  is  not  willing  to  receive  her  back,  and  that  he  cannot 
rely  on  the  continuance  of  the  separation  pending  the  suit  as  de- 
sertion, entitling  him  to  a  divorce  on  that  ground.17  The  Minnesota 
court  has  made  a  distinction  on  this  point  between  cases  in  which 
the  deserting  spouse  is  guilty  of  the  adultery  and  cases  in  which 
he  or  she  is  innocent,  and  has  held  that  where,  after  a  wife  has 
deserted  her  husband,  he  brings  a  suit  for  divorce  on  the  ground 
of  her  adultery  after  the  desertion,  the  divorce  suit  may  prevent 
her  continuing  to  remain  away  from  him  from  being  desertion 
if  she  is  innocent,  but  that  it  cannot  have  this  effect  if  she  is  guilty. 

is  Bradley  v.  Bradley,  160  Mass.  258,  35  N.  E.  482. 

is  Bedford  v.  Bedford,  162  Mo.  App.  127,  144  S.  W.  125;  Fielding  v.  Field- 
ing, 67  Fla.  143,  64  South.  546;  Seeds  v.  Seeds,  139  Iowa,  717,  117  N.  W. 
1069;  Patterson  v.  Patterson,  45  Wash.  296,  88  Pac.  196;  McKinney  v.  Mc- 
Kinney,  77  W.  Va.  58,  87  S.  E.  928.  But  see  Bogers  v.  Bogers,  81  N.  J. 
.Eq.  479,  86  Atl.  935,  46  L.  E.  A.  (N.  S.)  711;  Hague  v.  Hague,  85  N.  J. 
Eq.  537,  96  Atl.  579;  Dennison  v.  Dennison,  52  Misc.  Bep.  37,  102  N.  Y. 
Supp.  621 ;  Deveos  v.  Deveos,  115  Va.  517,  79  S.  E.  1048. 

17  Ford  v.  Ford,  143  Mass.  577,  10  N.  E.  474.  That  separation  during  the 
pendency  of  divorce  proceedings  is  not  desertion,  see,  also,  Clowes  v.  Clowes, 
9  Jur.  356;  Marsh  v.  Marsh,  14  N.  J.  Eq.  315,  82  Am.  Dec.  251;  Sykes  v. 
Halstead,  3  N.  Y.  Super.  Ct.  483 ;  Porritt  v.  Porritt,  18  Mich.  420 ;  Doyle  v. 
Doyle,  26  Mo.  545 ;  Salorgne  v.  Salorgne,  6  Mo.  App.  603 ;  Edwards  v.  Green, 
9  La.  Ann.  317 ;  Chipchase  v.  Chipchase,  48  N.  J.  Eq.  549,  22  Atl.  588 ;  Graeff 
v.  Graeff  (N.  J.  Ch.)  25  Atl.  704. 


266  SEPARATION  AND  DIVORCE  (Ch.  7 

"If  a  defendant,"  it  was  said,  "resisting  an  action  founded  upon 
her  alleged  desertion,  relies  upon  such  an  intervening  event  as  sus- 
pending or  interrupting  the  effect  of  the  desertion,  and  if  it  appear 
that  her  own  wrongful  conduct  naturally  caused  the  event  relied 
upon  in  defense,  such  a  defense  cannot  avail  her.  An  unjustifiable 
desertion  continues  to  be  desertion,  in  legal  contemplation  and 
effect,  none  the  less  although  it  be  attended  by  such  wrongful  con- 
duct on  the  part  of  the  deserting  party  as  would  naturally  forbid 
his  being-  received  again,  while  unreformed,  to  matrimonial  co- 
habitation." 18 

Misconduct  of  the  Abandoned  Spouse 

The  abandonment,  to  constitute  desertion,  even  where  there  is  no 
actual  consent,  must  be  unjustifiable.  If  either  spouse  is  guilty  of 
such  misconduct  as  to  justify  the  other  in  leaving,  the  latter's  ab- 
sence does  not  amount  to  desertion.19  "It  has  accordingly  been 
declared,"  says  the  Massachusetts  court,  "by  the  great  weight  of 
American  authority,  that  ill  treatment  or  misconduct  of  the  hus- 
band of  such  a  degree  or  under  such  circumstances  as  not  to  amount 
to  cruelty  for  which  the  wife  would  be  entitled  to  sue  for  a  divorce 
against  him  might  yet  justify  her  in  leaving  his  house,  and  prevent 
his  obtaining  a  divorce  for  her  desertion  if  she  did  so."  20 

is  Wagner  v.  Wagner,  39  Minn.  394,  40  X.  W.  360. 

i»  Lyster  v.  Lyster,  111  Mass.  327;  Crounse  v.  Crounse,  108  Va.  108,  60  S. 
E.  627;  Warner  v.  Warner,  54  Mich.  492,  20  N.  W.  557;  Hardin  v.  Hardin, 
17  Ala.  250,  52  Am.  Dec.  170 ;  Bishop  v.  Bishop,  155  Ky.  679,  160  S.  W.  176 ; 
Gillinwaters  v.  Gillimvaters,  28  Mo.  60;  Neff  v.  Neff,  20  Mo.  App.  182; 
Weigand  v.  Weigand,  42  N.  J.  Eq.  699,  11  Atl.  113 ;  Israel  v.  Israel,  185  Ala. 
39,  64  South.  67;  Farvvell  v.  Farwell,  47  Mont.  574,  133  Pac.  958,  Ann.  Cas. 
1915C,  78;.  Suydam  v.  Suydam,  79  N.  J.  Eq.  144,  SO  Atl.  1057.  Desertion  is 
not  justified  merely  because  the  wife  is  slovenly,  lazy,  and  neglectful  of 
her  own  person,  and  fails  to  keep  her  children,  her  household,  and  her  hus- 
band's clothing  in  proper  order.  Hunter  v.  Hunter,  121  111.  App.  380.  See, 
also,  McAndrews  v.  McAndrews,  31  Pa.  Super.  Ct.  252.  Where  the  wife 
was  compelled  to  leave  her  husband  on  account  of  his  cruel  treatment  it 
was  in  law  an  abandonment  by  the  husband.  Dowdy  v.  Dowdy,  154  X.  C. 
556,  70  S.  E.  917.  And  see  Davenport  v.  Davenport,  106  Va.  736,  56  S.  E. 
562. 

20  Lyster  v.  Lyster,  111  Mass.  327. 


§  104)  xGROUNDS  FOR  DIVORCE  267 

SAME— MISCELLANEOUS  OTHER  GROUNDS 

104.  Various  other  grounds  for  divorce  are  prescribed  by  the  stat- 
utes of  some  of  the  states.  Among  them  may  be  men- 
tioned : 

(a)  Habitual  drunkenness,  in  most  states. 

(b)  Conviction  of  crime  and  imprisonment  under  certain  circum- 

stances, in  most  states. 

(c)  Incurable  insanity,  in  some  states. 

(d)  Separation  not  amounting  to  desertion,  in  a  few  states. 

(e)  Nonsupport,  under  certain  circumstances,  in  some  states. 

(f)  Where  the  other  party  has  obtained  a  divorce  in  another  \    ' 

I  4.          •••.,•-  i*  ^V^fu^a 

state,  in  some  states Vdv^J v  Aj&^v.  ^4*-*^^^^-^-^%,  r  ^M>  d>  -»~ 

(g)  Causes  rendering  marriage  void  or  voidable,  in  some  states ; 

like  impotence,  relationship,  prior  marriage,  mental  inca- 
pacity, nonage,  fraud,  and  duress. 

Adultery,  cruelty,  and  desertion  are  the  most  common  grounds 
for  a  divorce ;  and  they  are  the  only  grounds  of  which  the  size  and 
scope  of  this  work  will  permit  of  treatment  at  any  length.  It  may 
be  well,  however,  to  call  attention  to  the  fact  that  the  statutes  in 
the  various  states  have  made  numerous  other  acts  or  circumstances 
grounds  for  divorce,  and  to  mention  the  substance  of  these  statutes 
shortly,  leaving  the  student  to  consult  the  local  statutes  to  deter- 
mine the  grounds  for  divorce  in  his  own  state. 

Habitual  Drunkenness,  etc. 

In  nearly  all  of  the  states  a  divorce  a  vinculo  matrimonii,  or  a 
mensa  et  thoro,  or  either,  at  the  option  of  the  injured  spouse,  may 
be  granted  for  "habitual  drunkenness,"  "gross  and  confirmed  habits 
of  intoxication,"  such  intoxication  as  renders  "living  together  insup- 
portable," etc.  The  language  of  the  statutes  differ,  but  they  mean 
substantially  the  same  thing.21  Perhaps  under  none  of  the  statutes 
will  a  divorce  be  granted  unless  it  is  shown  that  the  habits  of  drunk- 
enness are  confirmed  and  continued.  A  man  who  drinks  to  excess 
may  be  an  habitual  drunkard,  although  he  is  not  constantly  drunk, 
but  there  are  intervals  when  he  refrains  entirely  from  the  use  of 
intoxicating  liquors.  The  excessive  indulgence  in  intoxicating 

21  Stim.  Am.  St.  Law,  §  6206.  "Continued  drunkenness"  and  "habitual 
drunkenness"  mean  the  same  thing.  Gourlay  v.  Gourlay,  16  R.  1.  705,  19 
Atl.  142. 


268  SEPARATION  AND  DIVORCE  (Ch.  7 

drinks  as  a  fixed  habit  is  habitual  drunkenness.22  Neither  occasion- 
al drunkenness,28  nor  the  habitual,  but  moderate,  use  of  intoxi- 
cants,24 will  constitute  a  ground  for  divorce. 

A  person  who  frequently  drinks  to  excess,  and  becomes  intoxi- 
cated whenever  the  temptation  is  presented  and  the  oportunity  is 
afforded  him,  is  an  habitual  drunkard,  within  the  meaning  of  the 
statutes.25  The  word  "drunkenness,"  or  the  word  "intoxication," 
is  used  in  the  statute  in  its  ordinary  sense,  as  referring  to  the  effect 
of  intoxicating  liquors,  and  does  not  include  the  use  of  morphine 
or  other  drugs,  though  the  effect  of  their  use  is  similar.28 

A  wife  cannot  set  up  habitual  drunkenness  if,  at  the  time  of  the 
marriage,  she  knew  that  the  habit  existed.27 

zzGourlay  v.  Gourlay,  16  R.  I.  705,  19  Atl.  142;  O'Kane  v.  O'Kane,  103 
Ark.  382,  147  S.  W.  73,  40  L.  R.  A.  (N.  S.)  655 ;  Garrett  v.  Garrett,  252  111.  318, 
96  N.  E.  882,  reversing  160  111.  App.  321;  Tar-rant  v.  Tarrant,  156  Mo.  App. 
725,  137  S.  W.  56. 

as  Rapp  v.  Rapp,  149  Mich.  218,  112  N.  W.  709;  Smith  v.  Smith,  172  Mich. 
175,  137  N.  W.  644;  Donley  v.  Donley,  150  Mo.  App.  660,  131  S.  W.  356; 
Holm  v.  Holm,  44  Utah,  242,  139  Pac.  937. 

2*  Bain  v.  Bain,  79  Neb.  711,  113  N.  W.  141;  Schaub  v.  Schaub,  117  La. 
727,  42  South.  249. 

25  Walton  v.  Walton,  34  Kan.  195,  8  Pac.  110;  McBee  v.  McBee,  22  Or. 
329,  29  Pac.  887,  29  Am.  St.  Rep.  613 ;  Ludwick  v.  Com.,  18  Pa.  172 ;  State  v. 
Pratt,  34  Vt.  323;  Magahay  v.  Magahay,  35  Mich.  210;  Blaney  v.  Blaney, 
126  Mass.  205 ;  Mack  v.  Handy,  39  La.  Ann.  491,  2  South.  181 ;  De  Lesdernier 
v.  De  Lesdernier,  45  La.  Ann.  1364,  14  South.  191;  Williams  v.  Goss,  43 
La.  Ann.  868,  9  South.  750;  Golding  v.  Golding,  6  Mo.  App.  602;  Brown  v. 
Brown,  38  Ark.  324 ;  Richards  v.  Richards,  19  111.  App.  465 ;  McGill  v.  McGill, 
19  Fla.  341;  Mahone  v.  Mahone,  19  Cal.  627,  81  Am.  Dec.  91.  "The  phrase 
'habitual  intemperance'  scarcely  requires  an  interpretation.  It  is  easily  un- 
derstood. It  means  the  custom  or  habit  of  getting  drunk;  the  constant  in- 
dulgence In  such  stimulants  as  wine,  brandy,  and  whisky,  whereby  intoxi- 
cation is  produced;  not  the  ordinary  use,  but  the  habitual  use  of  them. 
The  habit  should  be  actual  or  confirmed.  It  may  be  intermittent.  It  need 
not  be  continuous  or  even  of  daily  occurrence."  Mack  v.  Handy,  supra. 
Though  the  periods  of  a  husband's  intoxication  occurred  only  three  or  four 
times  a  year,  yet,  where  they  lasted  a  week  or  ten  days  at  a  time,  and  he 
then  became  grossly  intoxicated,  and  went  or  was  sent  to  an  inebriate  asylum, 
and  such  periods  had  occurred  for  twelve  or  fifteen  years,  he  was  held  to 
be  an  habitual  drunkard.  Blaney  v.  Blaney,  supra. 

2«  Youngs  v.  Youngs,  130  111.  230,  22  N.  E.  806,  6  L.  R,  A.  543,  17  Am. 
St.  Rep.  313,  affirming  33  111.  App.  223 ;  Rindlaub  v.  Rindlaub,  19  N.  D.  352, 
125  N.  W.  479.  And  see  Com.  v.  Whitney,  11  Cush.  (Mass.)  477,  where  it 
was  held  that  evidence  of  habitual  intoxication  from  the  use  of  chloroform 
would  not  sustain  a  criminal  charge,  under  a  statute,  of  being  a  common 
drunkard. 

27  Porritt  v.  Porritt,  16  Mich.  140;  Tilton  v.  Til  ton,  29  S.  W.  290,  16  Ky. 
Law  Rep.  538 ;  Blaney  v.  Blaiiey,  126  Mass.  205. 


§  104)  GROUNDS  FOR  DIVORCE  269 

Conviction  of  Crime  and  Imprisonment 

In  most  states  conviction  of  either  party  of  a  crime,  and  sentence 
to  imprisonment  in  the  state  prison,  is  declared  a  ground  of  di- 
vorce.28 In  some  states  no  time  of  sentence  is  prescribed,  while  in 
others  the  imprisonment  must  be  for  a  certain  number  of  years, 
varying  in  the  different  states,  and  in  some  it  must  be  for  life.  In 
some  states  a  divorce  may  be  granted  if  either  party  has  been  in- 
dicted for  an  infamous  offense,  and  is  a  fugitive  from  justice;  in 
some  he  must  have  been  a  fugitive  for  a  prescribed  time.  In  some 
states  conviction  of  a  felony  or  infamous  crime  29  is  made  a  ground 
for  divorce,  without  mentioning  imprisonment  or  sentence.  As  a 
rule,  no  pardon  can  restore  the  guilty  party  to  his  marital  rights.30 

In  some  states  the  statutes  extend  to  conviction  and  imprison- 
ment in  another  state.31  It  has  been  held  that,  unless  the  statute  ex- 
pressly so  provides,  it  cannot  be  so  extended.32  This,  however, 
does  not  seem  reasonable.  The  reasons  why  a  divorce  should  be 
granted  are  as  strong  where  the  imprisonment  and  conviction  are 
without  the  state  as  where  they  are  within  it. 

A  woman  cannot  knowingly  marry  a  felon  after  his  conviction, 
and  afterwards  set  up  such  conviction,  or  a  sentence  to  imprison- 
ment based  thereon,  ,as  ground  for  divorce.  It  has  therefore  been 
held  that  since  a  woman  who  marries  a  man  who  has  been  con- 

28  Imprisonment  in  a  reformatory  is  not  ground  for  divorce  in  Massachu- 
setts.   Unsoeld  v.  Unsoeld,  216  Mass.  594,  104  N.  E.  462.    Under  the  Oregon 
statute  a  conviction  does  not  become  ground  for  divorce,  unless  it  has  be- 
come final  by  affirmance  on  appeal  or  by  failure  to  appeal.    Luper  v.  Luper, 
61  Or.  418,  96  Pac.  1099. 

29  in  Wheeler  v.  Wheeler,  2  Pa.  Dist.  R.  567,  it  was  held  that  assault  with 
intent  to  rape  was  not  an  "infamous"   crime,   within  the  meaning  of  the 
statute.     In  most  states,  however,  this  would  not  be  so;    but  all  offenses 
are  felonies  and'infamous  that  are  or  may  be  punishable  by  death  or  imprison- 
ment in  the  state  prison.     See  Clark,  Cr.  Law,  34 ;    Ex  parte  Wilson,  114  U. 
S.  417,  5  Sup.  Ct.  935,  29  L.  Ed.  89 ;    Mackin  v.  U.  S.,  117  U.  S.  348,  6  Sup. 
Ct.  777,  29  L.  Ed.  909 ;    U.  S.  v.  De  Walt,  128  U.  S.  393,  9  Sup:  Ct.  Ill,  32  L. 
Ed.  485.     The  Georgia  statute  (Civ.  Code  1895,  §  2426,  par.  8)  provides  that 
conviction  of  an  offense  involving  "moral  turpitude"  with  sentence  to  im- 
prisonment in  the  penitentiary  is  ground  for  divorce.     Holloway  v.  Hollo- 
way,  126  Ga.  459,  55  S.  E.  191,  7  L.  R.  A.  (N.  S.)  272,  115  Am.  St.  Rep.  102. 
7  Ann.  Gas.  1164. 

so  Holloway  v.  Holloway,  126  Ga.  459,  55  S.  E.  191,  7  L.  R.  A.  (N.  S.)  272, 
115  Am.  St.  Rep.  102,  7  Ann.  Cas.  1164;  Wood  v.  Wood,  135  Ga.  385,  69  S. 
E.  549. 

si  Frantz  v.  Frantz,  11  Pa.  Co.  Ct.  R.  467. 

32  Leonard  v.  Leonard,  151  Mass.  151,  23  N.  E.  732,  6  L.  R.  A.  632,  21  Am. 
St.  Rep.  437;  Martin  v.  Martin,  47  N.  H.  53. 


SEPARATION  AND  DIVORCE  (Ch.  7 

victed  of  a  crime,  while  his  case  is  pending  on  exceptions  in  the 
supreme  court,  must  know  that  sentence  is  likely  to  follow  such 
conviction,  a  subsequent  sentence  can  be  no  ground  for  divorce.83 
In  Wisconsin  a  statute  provides  that  a  sentence  of  imprisonment 
for  life  shall  dissolve  the  marriage  of  the  person  sentenced,  without 
any  judgment  of  divorce  or  other  legal  process;  and  there  are  sim- 
ilar statutes  in  other  states.  This,  however,  is  a  case  of  legislative 
divorce.84 

•     ^<^ 
Insanity 

In  the  absence  of  a  statute  expressly  allowing  it,  a  divorce  cannot 
be  granted  on  the  ground  of  the  other  party's  insanity.35  In  some 
states,  however,  statutes  have  been  enacted  entitling  a  party  to  a 
divorce  where  the  other  party  is  incurably  insane.88 

Grounds  Similar  to  Desertion — Nonsuppoft 

In  a  few  states  either  party  may  obtain  a  divorce  where  they  have 
voluntarily  lived  entirely  separate  for  a  certain  length  of  time; 
and  in  some  states  a  divorce  may  be  granted  when  either  party 
has  separated  from  the  other  without  his  or  her  consent,  and  join- 
ed with  a  religious  sect  or  society  that  professes  to  believe  the 
marriage  relation  void  or  unlawful,  and  refused  to  cohabit  with  the 
other.  In  a  few  states  a  party  is  entitled  to  a  divorce  when  the 
other  party  has  obtained  a  divorce  in  another  state ; 3T  and  in  some  a 
divorce  may  be  granted  for  disappearance  of  either  party,  and 
absence  for  a  certain  length  of  time,  without  being  heard  of.  In 
a  number  of  states,  failure  of  the  husband  to  support  his  wife,  where 
he  is  able  to  do  so,  is  made  a  ground  for  divorce.38 

ss  Caswell  v.  Caswell,  64  Vt.  557,  24  Atl.  988,  33  Am.  St.  Rep.  943. 

s*  Post,  p.   291. 

88  Pile  v.  Pile,  94  Ky.  308,  22  S.  W.  215;  Baughruan  v.  Baughman,  34  Pa. 
Super.  Ct.  271. 

3«  As  to  sufficiency  of  insanity,  see  Hanbury  v.  Hanbury,  [1892]  Prob.  222. 
That  such  a  law  is  valid,  see  Hickman  v.  Hickman,  1  Wash.  257,  24  Pac.  445, 
22  Am.  St.  Rep.  148. 

37  Van  Inwagen  v.  Van  Inwagen,  86  Mich.  333,  49  N.  W.  154. 

ss  Lee  v.  Lee,  38  Okl.  388,  132  Pac.  1070;  Gellatly  v.  Gellatly,  185  Mich. 
382,  151  N.  W.  1037;  Svanda  v.  Svanda,  93  Neb.  404,  140  N.  W.  777,  47 
L.  R.  A.  (N.  S.)  666;  Lillie  v.  Lillle,  65  Vt.  109,  26  Atl.  525;  Seigmund  v. 
Seiginund,  46  Wash.  572,  90  Pac.  913 ;  Caswell  v.  Caswell,  66  Vt.  242,  28  Atl. 
988 ;  Runkle  v.  Runkle,  96  Mich.  493,  56  N.  W.  2.  But  see  Arnold  v.  Arnold, 
115  Ark.  32,  170  S.  W.  486;  Weller  v.  Weller,  154  Mo.  App.  6,  133  S.  W. 
128.  Under  a  statute  providing  that  the  wife  may  have  a  divorce  when  the 
husband,  being  of  "pecuniary  ability,"  without  cause  refuses  to  support  her, 
and  construing  "pecuniary  ability1'  to  mean  ability  to  provide  for  a  wife, 


§  104)  GROUNDS  FOR  DIVORCE  271 

Divorce  as  a  Substitute  for  Decree  of  Nullity 

Nullity  suits — that  is,  suits  to  have  a  marriage  judicially  annulled 
for  causes  existing  at  the  time  it  was  entered  into,  and  rendering 
it  void  or  voidable — have  been  explained  in  treating  of  marriage, 
and  properly  so,  for  they  are  entirely  different  from  a  suit  for  di- 
vorce. In  case  of  a  decree  of  nullity  the  effect  is  not  to  dissolve 
an  existing  marriage,  but  to  declare  that  a  valid  marriage  has 
never  existed.  A  suit  for  a  divorce,  on  the  other  hand,  is  to  dissolve 
a  marriage  that  is  valid.  In  many  of  the  states  a  suit  for  divorce 
has  been  substituted  by  statute  for  the  remedy  by  suit  for  nullity, 
or  else  has  been  made  a  concurrent  remedy.  In  a  number  of  states, 
by  statute,  a  divorce  may  be  obtained  for  impotence  or  physical 
incapacity  of  either  party  existing  at  the  time  of  the  marriage ; 39 
or  because  the  marriage  is  within  the  prohibited  degrees  of  relation- 
ship ;  40  or  because  either  party  was  already  married  to  another,41 
or  was  non  compos  mentis,  or  under  the  age  of  consent;  or  because 
the  marriage  was  procured  by  fraud  or  duress.42 

either  from  labor,  income  of  property,  or  otherwise,  it  was  held  that  a  wife 
could  not  obtain  a  divorce  because  her  husband,  being  able-bodied,  would  not 
work,  and  had  therefore  no  means,  and  could  not  support  her.  Jewett  v. 
Jewett,  61  Vt.  370,  17  Atl.  734.  And  see  Farnsworth  v.  Farnsworth,  58 
Vt.  555,  5  Atl.  401.  A  divorce  was  refused  where  the  failure  of  the  husband 
to  support  his  wife  was  due  to  his  committal  to  prison  under  sentence;  the 
statute  allowing  a  divorce  for  "neglect  or  refusal  on  the  part  of  the  hus- 
band, being  of  sufficient  ability,  to  provide  necessaries  for  the  subsistence  of 
his  wife."  Hammond  v.  Hammond,  15  R.  I.  40,  23  Atl.  143,  2  Am.  St.  Rep. 
fc67. 

3»  As  to  what  constitutes  impotence,  see  Payne  v.  Payne,  46  Minn.  467,  49 
N.  W.  230,  24  Am.  St.  Rep.  240.  "Physically  incapacitated,"  as  used  in  the 
statute,  has  been  held  to  mean  "impotent."  Anon.,  89  Ala.  291,  7  South.^ 
100,  7  L.  R.  A.  425,  18  Am.  St.  Rep.  116.  It  has,  however,  been  considered 
a  broader  term  than  "impotent."  Thus,  a  woman  who  was  afflicted  with 
chronic  syphilis  was  held  physically  incapacitated.  Ryder  v.  Ryder,  66  Vt. 
158,  28  Atl.  1029,  44  Am.  St.  Rep.  833.  For  other  instances  of  physical 
incapacity,  see  Mutter  v.  Mutter,  123  Ky.  754,  97  S.  W.  393,  124  Am.  St.  Rep. 
381 ;  S v.  S ,  192  Mass.  194,  77  N.  E.  1025,  116  Am.  St.  Rep.  240.  Im- 
potence, to  authorize  a  divorce,  must  be  incurable,  or,  being  curable,  the  party 
must  refuse  to  submit  to  treatment.  Griffith  v.  Griffith,  55  111.  App.  474; 
Kinkaid  v.  Kinkaid,  256  111.  548,  100  N.  E.  217;  Bunger  v.  Bunger,  85  Kan. 
564,  117  Pac.  1017,  Ann.  Cas.  1913A,  126.  As  to  the  effect  of  impotence  on  the 
validity  of  a  marriage,  and  suits  for  nullity,  see  ante,  pp.  29,  56. 

40  McClain  v.  McClain,  40  Pa.  Super.  Ct.  248. 

41  See  Ralston  v.  Ralston,  2  Pa.  Dist.  R.  241;    Dimpfel  v.  Wilson,  107  Md. 
329,  68  Atl.  561,  13  L.  R.  A.  (N.  S.)  1180,  15  Ann.  Cas.  753. 

42  Wallace  v.  Wallace,  137  Iowa,  37,  114  N.  W.  527,  14  L.  R.  A.  (N.  S.) 
544,  126  Am.  St.  Rep.  253,  15  Ann.  Cas.  761;   Browning  v.  Browning,  89  Kan. 


272  SEPARATION  AND  DIVORCE  (Ch.  7 

Other  Grounds 

Other  grounds  for  divorce  prescribed  by  statute  in  some  of  the 
states  are  "gross  misbehavior  and  wickedness  of  either  party  re- 
pugnant to  and  in  violation  of  the  marriage  contract";  "any  in- 
famous crime  involving  a  violation  of  conjugal  duty";  "any  gross 
neglect  of  duty" ; "  commission  of  buggery  either  before  or  after 
the  marriage;  when,  unknown  to  the  husband,  the  wife  had  been 
guilty  of  fornication  before  the  marriage,  or  was  pregnant  by 
another  man,  or  was  a  prostitute,  or  was  matrimonially  incapacitat- 
ed.44 So,  on. the  other  hand,  the  wife  is  entitled  to  a  divorce  in 
some  states  where  the  husband,  unknown  to  the  wife,  was  a  noto- 
riously licentious  person  at  the  time  of  the  marriage. 

In  several  states  there  is  a  general  clause  in  the  statute  which 
allows  the  courts  a  very  wide  discretion  in  granting  divorces. 
In  Washington  the  statute  allows  a  divorce  "for  any  other  cause 
deemed  by  the  court  sufficient,  if  satisfied  that  they  [the  parties] 
can  no  longer  live  together."  4S  In  Connecticut  a  divorce  could  for- 
merly be  granted  "for  any  such  misconduct  as  permanently  de- 
stroys the  happiness  of  the  petitioner,  and  defeats  the  purpose  of 
the  marriage  relation" ;  but  this  clause  has  been  repealed.  In  Wis- 
consin a  divorce  may  be  allowed  "when,  by  reason  of  his  conduct 
towards  her  being  such  as  to  render  it  improper  for  her  to  live 
with  him,  the  court  are  of  opinion  that  it  will  be  discreet  and  prop- 
er to  grant  the  divorce."  In  Arizona  a  divorce  could  formerly  be 
granted  "when  the  case  is  within  the  reason  of  the  law,  within 
the  general  mischief  the  law  is  intended  to  remedy,  or  within  what 

OS,  130  Pac.  852,  L.  R.  A.  1916C,  737,  Ann.  Cas.  1914C,  1288.  But  see  Young 
v.  Young  (Tex.  Civ.  App.)  127  S.  W.  898.  One  who  claims  to  have  been 
fraudulently  induced  to  marry  by  the  representations  of  the  woman  that  she 
was  pregnant  by  illicit  intercourse  indulged  in  by  them,  but  failed  to  show 
that  he  was  deceived  thereby,  is  not  entitled  to  a  divorce  under  a  statute 
allowing  a  divorce  "where  the  alleged  marriage  was  procured  by  fraud,  force, 
or  coercion,  and  has  not  been  subsequently  confirmed  by  the  acts  of  the 
parties."  Todd  v.  Todd,  149  Pa.  60,  24  Atl.  128,  17  L.  R.  A.  320. 

43  Where  the  wife  has  refused  for  more  than  five  years  to  cohabit  with 
her  husband  as  his  wife,  or  to  perform  any  of  her  household  duties,  her1 
conduct  is  "gross  neglect  of  duty,"  within  the  meaning  of  the  statute.  Leach 
v.  Leach,  46  Kan.  724,  27  Pac.  131. 

*4  Pregnancy  at  the  time  of  the  marriage,  unknown  to  the  husband,  who 
had  had  no  intercourse  with  her,  is  "matrimonial  incapacity."  Caton  v. 
Caton,  6  Mackey  (D.  C.)  309. 

40  Ballinger's  Ann.  Codes  &  St.  §  5716,  subd.  7.  And  see  Bickford  v.  Bick- 
ford,  57  Wash.  639,  107  Pac.  S37;  Pierce  v.  Pierce,  68  Wash.  415,  123  Pac. 
598. 


§  105)  DEFENSES 

it  may  be  presumed  the  Legislature  establishing  the  foregoing  caus- 
es would  have  provided  against  had  they  foreseen  the  specific 
case";  but  this  provision  seems  to  be  no  longer  in  operation.  In 
Florida  a  divorce  is  allowed  "for  the  habitual  indulgence  of  a  vio- 
lent and  ungovernable  temper."  46 


DEFENSES— CONNIVANCE 

105.  Connivance  is  the  corrupt  consenting  by  one  spouse  to  an  of- 
fense by  the  other,  and  will  bar  a  suit  for  divorce  for  such 
offense. 

It  is  the  well-settled  rule,  and  one  which  the  courts  are  frequent- 
ly called  upon  to  apply,  that,  if  either  spouse  consents  to  conduct 
on  the  part  of  the  other  which  would  ordinarily  constitute  a 
ground  for  divorce,  he  or  she  will  be  held  to  have  connived  at  such 
conduct,  and,  orj  the  principle,  a  volenti  non  fit  injuria,  will  not  be 
heard  to  complain  of  it  as  a  ground  for  divorce.47  This  is  express- 
ly declared  by  the  statute  in  many  states.  Wliere  it  is  not  so  de- 
clared, it  is  nevertheless  recognized  as  the  law,  for  it  was  the  law 
of  the  English  ecclesiastical  courts,  and  it  is  to  be  assumed  that  the 
Legislature  intended  to  adopt  the  general  principles  by  which  those 
courts  were  governed,  in  so  far  as  they  are  applicable  and  rea- 
sonable.48 

On  this  principle  a  husband's  connivance  at  his  wife's  adultery 
has  frequently  been  held  a  complete  bar  to  a  divorce  for  the  par- 
ticular act  of  adultery  connived  at,49  or  for  subsequent  acts  ei- 
ther with  the  same  person  or  with  ariother.50  "If  he  has  relaxed 
with  one  man,  he  cannot  complain  of  another."  B1  But  this  harsh 

46  Hickson  v.  Hickson,  54  Fla.  556,  45  South.  474. 

47  Forster  v.   Forster,  1  Hagg.  Consist.  146 ;    Rogers  v.   Rogers,  3  Hagg. 
Ecc.  57;    Anichini  v.  Aulchini,  2  Curt.  Ecc.  210;    Morrison  v.  Morrison,  136 
Mass.  310;    Id.,  142  Mass.  361,  8  N.  E.  59,  56  Am.  Rep.  688;   Myers  v.  Myers, 
41  Barb.   (N.  Y.)  114;    Bourgeois  v.  Chauvin,  39  La.  Ann.  216,  1  South.  679. 

48  Morrison  v.  Morrison,  142  Mass.  361,  8  N.  E.  59,  56  Am.  Rep.  6vS8. 

49  Delaney  v.  Delaney,  71  N.  J.  Eq.  246,  65  Atl.  217,  reversing  69  N.  J.  Eq. 
602,  61  Atl.  266 ;    Armstrong  v.  Armstrong,  45  Misc.  Rep.  260,  92  X.  Y.  Supp. 
165 ;    Eames  v.  Eames,  133  111.  App.  665 ;    Riesen  v.  Riesen,  148  111.  App.  460 ; 
Pierce  v.  Pierce,  20  Mass.  (3  Pick.)  299,  15  Am.  Dec.  210. 

soQipps  v.  Gipps,  3  Swab.  &  T.  116;  Levering  v.  Levering,  3  Hagg.  Ecc. 
85;  Hedden  v.  Hedden,  21  N.  J.  Eq.  61 ;  Woodward  v.  Woodward,  41  N.  J, 
Eq.  224,  4  Atl.  424. 

si  Lovering  v.  Levering,  3  Hagg.  Ecc.  85. 
TIFF.P.&  D.REL.(3o  ED.)— 18 


274  SEPARATION  AND  DIVORCE  (Cll.  7 

rule  has  been  disapproved  in  some  cases.  Since  "the  iniquity  which 
deprives  a  suitor  of  a  right  of  justice  in  a  court  of  equity  is  not 
general  iniquitous  conduct,  unconnected  with  the  matter  in  suit, 
but  evil  practice  or  wrongful  conduct  in  the  particular  matter  or 
transaction  in  respect  to  which  judicial  protection  or  redress  is 
•sought,"82  it  has  been  held  that  connivance  by  a  husband  at  his 
wife's  adultery  is  no  bar  to  a  suit  for  divorce  on  the  ground  that 
other  acts  of  adultery  committed  by  her  without  his  connivance.53 
But  it  was  said  by  the  Massachusetts  court  that  "the  character 
of  the  connivance,  under  some  circumstances,  may  be  so  open, 
gross,  and  revolting  that  the  court  may  find  that  no  injury  has  been 
done  the  husband,  and  that,  therefore,  there  is  nothing  to  redress ; 
that  the  husband  has  entirely  abandoned  all  right  to  claim  that 
his  wife  should  be  chaste;  and  that  he  has  thus  consented  to  her 
prior  adultery.  He  may  come  before  the  court  with  such  impure 
hands  that,  upon  the  soundest  considerations  of  public  policy,  his 
divorce  should  be  refused."  84 

To  constitute  connivance,  it  is  not  necessary  that  there  be  any 
active  procurement  of  the  wrongful  act.  "I  have  no  difficulty," 
said  Lord  Stowell,  "in  saying  that  passive  conduct  is  as  much  a  bar 
as  active  conspiracy."  "  Where  the  conduct  of  the  husband  "in- 
dicates an  intention  to  have  his  wife  transgress,  or  at  least  an  in- 
tention to  allow  her  to  do  so,  undisturbed  and  unprevented,"  this 
amounts  to  connivance.58 

Though  passive  and  permissive  conduct  may  be  sufficient,  there 
must  be,  at  least,  consent  amounting  to  a  corrupt  intention  to 
constitute  connivance.  "Passive  acquiescence  would  be  sufficient 
to  bar  the  husband,  providing  it  appeared  to  be  done  with  the  in- 
tention and  in  the  expectation  that  she  would  be  guilty  of  the 
crime;  but,  on  the  other  hand,  it  has  always  been  held  that  there 

52  Woodward  v.  Woodward,  41  N.  J.  Eq.  224,  4  Atl.  424,  citing  1  Pom. 
Eq.  Jur.  §  399. 

as  Woodward  v.  Woodward,  41  N.  J.  Eq.  224,  4  Atl.  424;  Morrison  v.  Mor- 
rison, 142  Mass.  361,  8  N.  E.  59,  56  Am.  Rep.  688;  VIERTEL  v.  VIERTEL, 
99  Mo.  App.  710,  75  S.  W.  187,  Cooley  Gas.  Persons  and  Domestic  Relations,  137. 

B4  Morrison  v.  Morrison,  142  Mass.  361,  8  N.  E.  59,  56  Am.  Rep.  688. 

65  Moorsom  v.  Moorsom,  3  Hagg.  Ecc.  87,  107.  And  see  Rogers  v.  Rogers, 
Id.  57 ;  Rix  v.  Rix,  Id.  74 ;  Boulting  v.  Boulting,  3  Swab.  &  T.  329 ;  Cairns 
v.  Cairns,  109  Mass.  408;  Morrison  v.  Morrison,  136  Mass.  310;  Bourgeois  v. 
Chauvin,  39  La.  Ann.  216,  1  South.  679. 

BO  Bourgeois  v.  Chauvin,  39  La.  Ann.  216,  1  South.  679;  Viertel  v.  Viertel, 
86  Mo.  App.  494. 


§  105)  DEFENSES  275 

must  be  a  cohsent.  The  injury  must  be  volenti;  it  must  be  some- 
thing more  than  mere  negligence,  than  mere  inattention,  than  over- 
confidence,  than  dullness  of  apprehension,  than  mere  indifference. 
It  must  be  intentional  concurrence  in  order  to  amount  to  a  bar."  B7 
If  a  husband  who  has  reason  to  suspect  his  wife  of  adultery  merely 
does  nothing  to  prevent  a  recurrence  of  the  act,  and  take  steps  to 
obtain  proofs,  there  is  no  connivance,58  and  even  where  the  hus- 
band, suspecting  his  wife  of  adultery,  laid  a  trap  for  her  and  caught 
her  in  flagrante  delicto,  there  was  no  connivance.59  But  the  law 
does  not  allow  temptation  to  be  placed  in  a  wife's  way  in  order 
that  advantage  may  be  taken  of  the  consequences.60  "A  husband 
is  not  barred  by  mere  permission  of  opportunity  for  adultery,  nor 
is  it  every  degree  of  inattention  which  will  deprive  him  of  relief, 
but  it  is  one  thing  to  permit  and  another  to  invite."  61  A  husband 
who  endeavors  to  procure  his  wife  to  be  lured  into  an  act  of  adul- 
tery consents  to  it.62  So,  where  detectives  employed  by  the  hus- 
band to  procure  evidence  against  the  wife  purposely  induced  her  to 
commit  adultery,  there  was  connivance,  barring  a  divorce,  though 
the  husband  had  not  given  any  distinct  orders  to  the  detectives  so  to 
act.68 

67  Rogers  v.  Rogers,  3  Hagg.  Ecc.  57 ;  Rix  v.  Rix,  Id.  74 ;  Boulting  v.  Boult- 
ing,  3  Swab.  &  T.  329;  Harris  v.  Harris,  2  Swab.  &  T.  530;  Glennie  v.  Glen- 
nie,  8  Jur.  (N.  S.)  1158 ;  Gipps  v.  Gipps,  11  H.  L.  Gas.  1 ;  Phillips  v.  Phillips, 
1  Rob.  Ecc.  144 ;  Cochran  v.  Cochran,  35  Iowa,  477 ;  Welch  v.  Welch,  50  Ho. 
App.  395.  Mere  passive  permission  to  misconduct  in  order  to  test  fidelity  is 
not  connivance.  Herriford  v.  Herriford,  169  Ho.  App.  641,  155  S.  W.  855.. 
And  see  Lambert  v.  Lambert,  165  Iowa,  367,  145  N.  W.  920. 

ss  Timmings  y.  Timmings,  3  Hagg.  Ecc.  76;  Reiersen  v.  Reiersen,  32  App. 
Div.  62,  52  N.  Y.  Supp.  509;  Robbins  v.  Robbins,  140  Hass.  528,  5  N.  E. 
837,  54  Am.  Rep.  488;  Engle  v.  Engle,  153  Iowa,  285,  133  N.  W.  654;  Leh- 
man v.  Lehman,  78  N.  J.  Eq.  316,  79  Atl.  1060;  Pettee  v.  Pettee,  77  Hun, 
595,  28  N.  Y.  Supp.  1067;  Wilson  v.  Wilson,  154  Hass.  194,  28  N.  E.  167,  12 
L.  R.  A.  524,  26  Am.  St.  Rep.  237. 

5»  Farwell  v.  Farwell,  47  Hont.  574,  133  Pac.  958,  Ann.  Gas.  1915C,  78. 

eo  Viertel  v.  Viertel,  86  Ho.  App.  494;  Noyes  v.  Noyes,  194  Hass.  20,  79  N. 
E.  814,  120  Am.  St.  Rep.  517,  10  Ann.  Cas.  818. 

ei  Timmings  v.  Timmings,  3  Hagg.  Ecc.  76;  Harris  v.  Harris,  2  Hagg.  Ecc. 
376. 

62  Woodward  v.  Woodward,  41  N.  J.  Eq.  224,  4  Atl.  424;   Noyes  v.  Noyes, 
194  Hass.  20,  79  N.  E.  814,  120  Am.  St.  Rep.  517,  10  Ann.  Cas.  818. 

63  Rademacher  v.   Rademacher,  74  N.  J.   Eq.  570,  70  Atl.  687.     And  see 
McAllister  v.  HcAllister  (Sup.)  137  N.  Y.   Supp.  833. 


276  SEPARATION  AND  DIVORCE         \T  h.  7 


SAME—  COLLUSION 


106.  Collusion  is  any  agreement  between  the  parties  whereby  they 
seek  to  obtain  a  divorce  by  an  imposition  on  the  court, 
and  is  ground  for  refusing  relief. 

In  no  case  will  a  divorce  be  granted  if  it  appears  that  there  is 
collusion  between  the  parties,  even  though  it  may  appear  that 
there  is  a  valid  cause  for  the  divorce.  Any  agreement  between  hus- 
band and  wife  by  which  they  are  to  endeavor  to  obtain  a  divorce 
by  imposing  upon  the  court  is  collusion,  within  the  meaning  of 
this  rule.84 

It  is  clearly  collusion  for  the  parties  to  agree  that  one  of  them 
shall  institute  a  suit  for  divorce  for  a  cause  which  does  not  exist, 
although  they  may  have  some  other  ground.68  It  is  also  collusion 
for  them  to  agree  to  suppress  facts  which  are  pertinent  and  mate- 
rial ;  6fl  or  to  institute  a  suit  for  divorce  in  pursuance  of  an  under- 
standing whereby  one  of  them  has  committed  some  offense,  such 
as  adultery,  for  the  purpose  of  affording  ground  for  a  divorce.67 
And,  in  general,  it  is  collusion  for  the  parties  to  act  in  concert  in 
the  conduct  of  the  suit,  even  though  there  may  be  a  valid  ground  for 
divorce.68  But  the  husband  may  make  the  wife  a  reasonable  allow- 
ance while  the  suit  is  pending,  in  order  to  save  the  expense  of  an 
application  for  alimony.69  Collusion  implies  action  in  concert. 

«*  Griffiths  v.  Griffiths,  69  N.  J.  Eq.  689,  60  Atl.  1090;  People  v.  Case,  241 
111.  279,  89  N.  E.  638,  25  L.  R,  A.  (N.  S.)  578;  Branson  v.  Branson,  76  Neb. 
780,  107  X.  W.  1011. 

SB  Butler  v.  Butler,  15  Prob.  Div.  13,  32,  66;  Jessop  v.  Jessop,  2  Swab.  & 
T.  301  ;  Stokes  v.  Anderson,  118  Ind.  533,  21  N.  E.  331,  4  L.  R.  A.  313. 

66  Hunt  v.  Hunt,  47  Law  J.  Prob.  Div.  &  Adm.  22;    Barnes  v.  Barnes,  L. 
R.  1  Prob.  &  Div.  505  ;   Jessop  v.  Jessop,  2  Swab.  &  T.  301.    It  is  collusion  to 
suppress  evidence  of  a  valid  defense.     Griffiths  v.  Griffiths,  69  N.  J.  Eq.  689, 
60  Atl.  1090. 

67  Todd  v.  Todd,  L.  R.  1  Prob.  &  Div.  121;  Crewe  v.  Crewe,  3  Hagg.  Ecc. 
123. 

68  Lloyd  v.  Lloyd,  1  Swab.  &  T.  567.     But  see  Harris  v.  Harris,  4  Swab. 
&  T.  232;    Frank  v.  Frank,  178  111.  App.  557;   Sheehan  v.  Sheehan,  77  N.  J. 
Eq.  411,  77  Atl.  1063,  140  Am.  St  Rep.  566.    Agreements  intended  merely  to 
facilitate  the  divorce  proceedings  do  not  show  collusion.    Dodge  v.  Dodge, 
98  App.  Div.  85,  90  N.  Y.  Supp.  438. 

6»  Barnes  v.  Barnes,  IA  R,  1  Prob.  &  Div.  505;  In  re  Ellis'  Estate,  55  Minn. 
401,  56  N.  W.  1056,  23  L.  R.  A.  287,  43  Am.  St  Rep.  514.  An  agreement 
pending  suit  for  divorce  respecting  alimony,  not  accompanied  by  any  under- 
standing that  the  wife  shall  have  a  divorce  or  that  the  husband  shall  re- 


§§  107-108)  DEFENSES  277 

There  is  no  collusion,  therefore,  where  one  party  takes  advantage 
of  a  matrimonial  offense  by  the  other  as  a  ground  for  divorce, 
though  the  offense  was  committed  by  the  other  in  the  desire,  and 
with  the  hope  and  expectation,  that  such  advantage  would  be  tak- 
en of  it.  In  other  words,  the  fact  that  one  party  commits  an  offense, 
such  as  adultery  or  desertion,  for  the  purpose  of  affording  the  oth- 
er grounds  for  divorce,  does  not  bar  the  other's  right  to  a  divorce, 
if  the  other  did  not  act  in  concert  to  afford  such  ground.70 

SAME— CONDONATION. 

107.  Condonation  is  the  forgiveness  of  a  marital  offense  constitut- 

ing a  ground  for  divorce,  and  bars  the  right  to  a  divorce. 
But  condonation  is  on  the  condition,  implied  by  law  when 
not  express,  that  the  wrongdoer  shall  not  again  commit 
that  offense,  and  also  that  he  shall  thereafter  treat  the  oth- 
er with  "conjugal  kindness" ;  and  a  breach  of  the  condition 
will  revive  the  original  offense  as  a  ground  for  divorce. 

108.  Condonation  may  be  by  express  words,  if  acted  upon;  or  it 

may  be  inferred  from  conduct  alone. 

The  forgiveness  or  remission  by  one  of  the  spouses  of  a  marital 
offense  committed  by  the  other  is,  in  law,  such  a  condonation  of  the 
offense  as  will  bar  a  suit  for  divorce  therefor.71  This  doctrine  not 
only  applies  to  adultery,  but  it  also  applies  to  cruelty,  and  to  every 
other  offense  that  constitutes  a  ground  for  divorce.72 

frain  from  contesting  the  suit  is  not  collusion.  Rapp  v.  Rapp,  162  Mo.  App. 
673,  145  S.  W.  114. 

70  Shaw  v.  Gould,  L.  R.  3  H.  L.  55;    Crewe  v.  Crewe,  3  Hagg.  Ecc.  123; 
Utterton  v.  Tewsh,  Ferg.  Const.  23;    Kibblewhite  v.  Rowland,  Id.  226;    Wil- 
mer  v.  Wilmer,  21  N.  D.  371,  130  N.  W.  1015. 

71  Durant  v.  Durant,  1  Hagg.  Ecc.  733;   Westmeath  v.  Westmeath,  2  Hagg. 
Ecc.  Supp.  1 ;   Ferrers  v.  Ferrers,  1  Hagg.  Const.  130 ;  D'Aguilar  v.  D'Aguilar, 
1  Hagg.  Ecc.  773;    Sewall  v.  Sewall,  122  Mass.  156,  23  Am.  Rep.  299;  .Cum- 
ming  v.  Cumming,  135  Mass.  386,  46  Am.  Rep.  476;    Johnson  v.  Johnson,  14 
Wend.  (N.  Y.)  637 ;   Taber  v.  Taber  (N.  J.  Ch.)  66  Atl.  1082 ;    Laycock  v.  Lay- 
cock,  52  Or.  610,  98  Pac.  487 ;   Griffith  v.  Griffith,  77  Neb.  180,  108  N.  W.  981 ; 
Quiucy  v.  Quincy,  10  N.  H.  272;   Turnbull  v.  Turnbull,  23  Ark.  615.    Where 
a  wife  with  full  knowledge  condones  an  offense  and  the  husband  is  not  guil- 
ty of  further  offense,  she  cannot  in  a  subsequent  suit  against  her  for  deser- 
tion set  up  the  condoned  act  to  prevent  a"  divorce.     Davis  v.  Davis,  134  Ga. 
804,  68  S.  E.  594;   30  L.  R.  A.  (N.  S.)  73,  20  Ann.  Gas.  20.' 

"  Gardner  v.  Gardner,  2  Gray  (Mass.)  434;  Clague  v.  Clague,  46  Minn.  461, 
49  N.  W.  198;  McGurk  v.  McGurk  (N.  J.  Ch.)  28  Atl.  510;  Sullivan  v.  Sulli- 


278  SEPARATION  AND  DIVORCE  (Ch.  7 

Forgiveness  Conditional 

Condonation  is  always  conditional.  When  the  condition  is  not 
expressed,  the  law  implies  a  condition,  not  only  that  the  particular 
offense  shall  not  be  repeated,78  but  also  that  the  offender  shall  treat 
the  other  with  "conjugal  kindness."  74  A  breach  of  this  condition 
will  revive  the  original  offense  as  a  ground  for  divorce,  and  it  may 
be  relied  upon  for  this  end  just  as  fully  as  if  it  had  never  been  con- 
doned.75 A  condoned  offense,  whatever  it  may  be,  is  therefore  re- 
vived if  the  wrongdoer  is  subsequently  guilty  of  adultery,  cruelty, 
desertion,  or  any  other  breach  of  "conjugal  kindness."  76  Acts  of 
cruelty  will  revive  a  condoned  offense,  even  though  they  may  not 
themselves  be  sufficient  as  a  ground  for  divorce ;  and  the  same  must 
be  true  of  desertion  for  less  than  the  period  required  to  make  it  a 

van,  34  Ind.  368;  Phillips  v.  Phillips,  27  Wis.  252;  Bingham  v.  Bingham 
(Tex.  Civ.  App.)  149  S.  W.  214 :  Murchison  v.  Murchison  (Tex.  Civ.  App.)  171 
S.  W.  790 ;  Nogees  v.  Nogees,  7  Tex.  538,  58  Am.  Dec.  78. 

73  Durant  v.  Durant,  1  Hagg.   Ecc.  733;    Davis  v.  Davis,  134  Ga.  804,  68 
S.  E.  594.  30  L.  R.  A.  (N.  S.)  73,  20  Ann.  Gas.  20:   Kostachek  v.  Kostachek, 
40  Okl.  747,  140  Pac.  1021;    Nogees  v.  Nogees,  7  Tex.  538,  58  Am.  Dec.  78; 
Sewall  v.  Sewall,  122  Mass.  156,  23  Am,.  Rep.  299. 

74  -The  plainer  reason  and  good  sense  of  the  implied  condition  is  'that 
you  shall  not  only  abstain  from  adultery  but  shall  in  future  treat  me — in 
every  respect  treat  me  [to  use  the  words  of  the  law] — with  conjugal  kind- 
ness.   On  this  condition  I  will  overlook  the  past  injuries  you  have  done  me.'  " 
Durant  v.  Durant,  1  Hagg.  Ecc.  743.     And  see  Westmeath  v.  Westmeath,  2 
Hagg.  Ecc.  Supp.  1,  114;    Johnson  v.  Johnson,  14  Wend.  (N.  Y.)  637;    Farn- 
ham  v.  Farnham,  73  111.  497 ;  Warner  v.  Warner,  31  N.  J.  Eq.  225 ;   Atherton 
v.  Atherton,  82  Hun,  179,  31  N.  Y.  Supp.  977;   Shackleton  v.  Shackleton,  48  N. 
J.  Eq.  364,  21  Atl.  935,  27  Am.  St.  Rep.  478 ;  Nogees  v.  Nogees,  7  Tex.  538,  58 
Am.  Dec.  78 ;    Egidi  v.  Egidi,  37  R.  I.  481,  93  Atl.  908,  Ann.  Cas.  1918A,  648 ; 
Robbins  v.  Robbins,  100  Mass.  150,  97  Am.  Dec.  91. 

70  Cases  cited  supra  and  infra. 

76  Worsley  v.  Worsley,  cited  in  1  Hagg.  Ecc.  734,  2  Lee,  Ecc.  572;  Durant 
v.  Durant,  1  Hagg.  Ecc.  733;  D'Aguilar  v.  D'Aguilar,  Id.  773;  Bramwell  v. 
Bramwell,  3  Hagg.  Ecc.  618 ;  Dent  v.  Dent,  4  Swab.  &  T.  105 ;  Newsome  v. 
Newsome,  L.  R.  2  Prob.  &  Div.  313;  Warner  v.  Warner,  31  N.  J.  Eq.  225; 
Farnham  v.  Farnham,  73  111.  497;  Odom  v.  Odom,  36  Ga.  286;  Jbhnson  v. 
Johnson,  14  Wend.  (N.  Y.)  637;  Timerson  v.  Timerson,  2  How.  Prac.,  N.  S. 
(N.  Y.)  526 ;  Egidi  v.  Egidi,  37  R.  I.  481,  93  Atl.  908,  Ann.  Cas.  1918A,  648 ; 
Viertel  v.  Viertel,  123  Mo.  App.  63,  99  S.  W.  759;  Mosher  r.  Mosher,  16 
N.  D.  269,  113  N.  W.  99,  12  L.  R.  A.  (N.  S.)  820,  125  Am.  St.  Rep.  654;  Cozard 
v.  Cozard,  48  Wash.  124,  92  Pac.  935;  Copsey  v.  Copsey,  74  Law.  J.  Prob. 
40,  [1905]  Prob.  94,  91  Law  T.  363,  20  Times  Law  R.  728 ;  Wellman  v.  Well- 
man,  178  Mich.  107,  144  N.  W.  493;  Skinner  v.  Skinner,  47  Ind.  App.  670,  95 
N.  E.  128;  Page  v.  Page,  167  N.  C.  346,  88  S.  E.  625;  Hartl  v.  Hartl,  155 
Iowa,  329,  135  N.  W.  1007;  Anderson  v.  Anderson,  89  Neb.  570,  131  N.  W. 
907,  Ann.  Cas.  1912C,  1;  McNamara  v.  McNamara,  93  Neb.  190,  139  N.  W. 
1045.  But  compare  Brown  v.  Brown,  129  Ga.  246,  58  S.  E.  825,  holding  that, 


§§  107-108)  DEFENSES  279 

ground  for  divorce."  It  was  said  in  a  Massachusetts  case:  "The 
law  is  settled  in  this  commonwealth,  in  accordance  with  the  doctrine 
declared  by  Lord  Stowell  and  Sir  John  Nicholl  in  the  English  ec- 
clesiastical courts,  that  any  condonation  by  the  wife  of  her  hus- 
band's cruelty  is  on  the  implied,  if  not  express,  condition  of  his 
treating  her  in  the  future  with  conjugal  kindness;  that  any  breach 
of  this  condition  will  revive  the  right  to  maintain  a  libel  for  the 
original  offense ;  and  that  such  a  breach  may  be  shown  by  act,  word, 
or  conduct  which  would  not  of  themselves  prove  a  cause  of  divorce. 
Harshness  and  rudeness,  not  sufficient  to  maintain  a  libel  may  re- 
ceive a  different  interpretation  and  effect  upon  the  question  of  con- 
donation after  proof  that  the  husband  has  previously  gone  to  the 
length  of  positive  acts  of  cruelty."  78 

What  Amounts  to  Condonatidn 

Condonation  may  be  by  express  words  of  forgiveness ; 79  but  an 
offer  to  forgive  will  not  amount  to  condonation,  unless  it  is  accepted 
or  acted  upon  by  the  other  party.80  Condonation  may  also  be  im- 
plied from  the  conduct  of  the  parties,  without  proof  of  express  for- 
giveness, and  even,  it  seems  from  some  of  the  cases,.though  it  could 
be  shown  that  there  was  no  forgiveness  in  fact.  Sexual  intercourse, 
for  instance,  with  knowledge  of  a  prior  offense,  is  such  condona- 
tion.81 Voluntary  cohabitation,  also,  is  generally  held  to  be  proof 

where  acts  of  cruelty  have  been  condoned,  such  acts  vyill  not  be  revived  as  a 
ground  of  divorce  except  by  fresh  acts  of  cruelty. 

77  Durant  v.  Durant,  1  Hagg.  Ecc.  743;    D'Aguilar  v.  D'Aguilar,  Id.  773; 
Bramwell  v.  Bramwell,  3  Hagg.  Const.  618;    Farnham  v.  Farnham,  73  111. 
497 ;   Warner  v.  Warner,  31  N.  J.  Eq.  225 ;   Threewits  v.  Threewits,  4  Desaus. 
(S.  C,)  560;    Kostachek  v.  Kostaohek,  40  Okl.  747,  140  Pac.  1021;   Mathewson 
v.  Mathewson,  81  Vt.  173,  69  Atl.  646,  18  L.  R.  A.  (N.  S.)  300;    Marshall  7. 
Marshall,  60  Vt.  238,  26  Atl.  900 ;   Robbius  v.  Robbins,  100  Mass.  150,  97  Am. 
Dec.  91. 

78  Robbins  v.  Robbins,  100  Mass.  150,  97  Am.  Dec.  91. 

7»  Beeby  v.  Beeby,  1  Hagg.  Ecc.  789;   Quincy  v.  Quincy,  10  N.  H.  272. 

so  Keats  v.  Keats.  1  Swab.  &  T.  334;  Popkiri  v.  Popkin,  1  Hagg. 'Ecc.  765, 
note;  Ferrers  v.  Ferrers,  Id.  781,  note;  Quarles  v.  Quarles,  19  Ala.  363; 
Wolff  v.  Wolff,  102  Cal.  433,  36  Pac.  767,  1037;  Anderson  v.  Anderson,  89 
Neb.  570,  131  N.  W.  907,  Ann.  Gas.  1912C,  1.  And  see  Egbers  v.  Egbers,  79 
Wash.  72,  139  Pac.  767. 

si  Snow  v.  Snow,  2  Notes  of  Gas.  Supp.  13;  Dillon  v.  Dillon,  3  Curt.  Ecc. 
86;  Timmings  v.  Timmings,  3  Hagg.  Ecc.  76;  Rogers  v.  Rogers,  67  N.  J.  Eq. 
534,  58  Atl.  822 ;  Pitts  v.  Pitts,  52  N.  Y.  593 ;  Quincy  v.  Quincy,  10  N.  H.  272, 
274;  Doe  v.  Doe,  52  Hun,  405,  5  N.  Y.  Supp.  514;  Burns  v.  Burns,  60  Ind. 
259;  Thomas  v.  Thomas,  2  Cold.  (Tenn.)  123;  Farmer  v.  Farmer,  86  Ala. 
322,  5  South.  434 ;  Sparks  v.  Sparks,  94  N.  C.  527 ;  Eggerth  v.  Eggerth,  15  Or. 
626,  16  Pac.  650 ;  Auld  v.  Auld  (Super.  N.  Y.)  16  N.  Y.  Supp.  803 ;  Tilton  v. 


280  SEPARATION  AND  DIVORCE  (Ch.  7 

of  condonation ; 82  but  condonation  will  not  necessarily  be  implied 
from  the  fact  that  the  husband  and  wife  continued  to  live  together 
if  there  was  no  sexual  intercourse.88  Sexual  intercourse  will  be  pre- 
sumed where  the  husband  and  wife  are  living  together,  but  such 
presumption  may  be  rebutted.84 

Because  of  the  dependent  position  of  the  wife,  condonation  will 
not  be  so  readily  inferred  from  conduct  against  her  as  it  would  be 
against  the  husband.88 

Same — Knowledge  of  Offense 

Condonation  necessarily  implies  knowledge  of  the  offense  com- 
mitted. Conduct,  as,  for  instance,  continued  cohabitation  and  inter- 
course, cannot  be  construed  as  condonation  if  there  was  no  knowl- 

Tilton,  29  S.  W.  290,  16  Ky.  Law  Rep.  538 ;  Shivey  v.  Shivey,  87  Ark.  175, 
112  S.  W.  369 ;  Johnson  v.  Johnson,  78  N.  J.  Eq.  507,  80  Atl.  119 ;  Shackle- 
ton  v.  Shackleton,  48  N.  J.  Eq.  364,  21  Atl.  935,  27  Am.  St.  Rep.  478.  But 
see  Bohnert  v.  Bohnert,  95  Cal.  444,  30  Pac.  590,  where  it  was  held  that  a 
single  act  of  sexual  intercourse  after  the  commencement  of  a  suit  for  a  di- 
vorce for  adultery  was  not  alone  sufficient  to  constitute  condonation.  See 
Hall  v.  Hall,  60  Law  J.  Prob.,  Div.  &  Adm.  73.  The  rule  should  not  be  en- 
forced so  rigorously  against  the  wife  as  against  the  husband.  Johnson  v. 
Johnson,  78  N.  J.  Eq.  507,  80  Atl.  119 ;  Leech  v.  Leech,  82  N.  J.  Eq.  472,  89 
Atl.  51. 

82  Beeby  v.  Beeby,  1  Hagg.  Ecc.  789;    Johnson  v.  Johnson,  14  Wend.  (N. 
Y.)  637;    Anon.,  6  Mass.  147:    Eames  v.  Eames,  133  111.  App.  665;    McDuffee 
v.  MtDuffee,  169  Mich.  410,  135  N.  W.  242 ;    Bridge  v.  Bridge  (N.  J.  Oh.)  93 
Atl.  690;    Rogers  v.  Rogers,  81  Wash.  502,  142  Pac.  1150;    Phelps  v.  Phelps, 
28  App.  D.  C.  577;    Holschbach  v.  Holschbach,  134  Mo.  App.  247,  114  S.  W. 
1035 ;   Clague  v.  Clague,  46  Minn.  461,  49  N.  W.  198  ;  Nullmeyer  v.  Nullmeyer, 
49  111.  App.  573 ;    Shivey  v.  Shivey,  87  Ark.  17j,  112  S.  W.  369 ;   In  re  Adams' 
Estate,  161  Iowa,  88,  140  N.  W.  872 ;    Johnsen  v.  Johnsen,  78  Wash.  423,  139 
Pac.  189,  1200 ;   Land  v.  Martin,  46  La.  Ann.  1246,  15  South.  657 ;   McGurk  v. 
McGurk  (N.  J.  Ch.)  28  Atl.  510.     But  the  fact  that  a  wife  put  up  with  mis- 
treatment in  the  hope  of  cessation  will  not  prevent  her  from  showing  such 
treatment  in  a  baseless  action  for  divorce  brought  by  the  husband.    Bliss  v. 
Bliss,  161  Mo.  App.  70,  142  S.  W.  1081.    And  a  wife  does  not  condone  hus- 
band's adultery  by  continuing  to  live  with  him  in  the  belief  that  his  miscon- 
duct had  ceased,  when  in  fact  it  had  not    Howard  v.  Howard,  188  Mo.  App. 
564,  176  S.  W.  483. 

83  Dance  v.  Dance,  1  Hagg.  Ecc.  794,  note ;    Westmeath  v.  Westmeath,  2 
Hagg.  Ecc.  Supp.  1;    Guthrie  v.  Guthrie,  26  Mo.  App.  566;    Harnett  v.  Har- 
nett,  59  Iowa,  401,  13  N.  W.  408;    Jacobs  v.  Tobelman,  36  La.  Ann.  842; 
Deuison  v.  Denison,  4  Wash.  705,  30  Pac.  1100;   Lindsay  v.  Lindsay,  226  111. 
309,  80  N.  E.  876. 

«*  Beeby  v.  Beeby,  1  Hagg.  Ecc.  789 ;  Snow  v.  Snow,  2  Notes  of  Cas.  Supp. 
1,  13 ;  Burns  v.  Burns,  60  Ind.  259 ;  Phelps  v.  Phelps,  28  App.  D.  C.  577. 

ssD'Aguilar  v.  IXAguilar,  1  Hagg.  Ecc.  773;  Beeby  v.  Beeby,  Id.  789; 
Kirkwall  v.  Kirkwall,  2  Hagg.  Const.  277;  Gardner  v.  Gardner,  2  Gray 
(Mass.)  434;  Wood  v.  Wood,  2  Paige  (N.  Y.)  108;  Bowie  v.  Bowie,  3  Md.  Ch. 


§    109)  DEFENSES  281 

edge  of  the  offense  claimed  to  have  been  condoned,88  Mere  sus- 
picion is  not  knowledge.  Cohabitation  under  circumstances  which 
might  excite  suspicion  merely,  but  without  actual  knowledge,  is  not 
condonation.87  That  a  wife  retains  confidence  in  her  husband,  or  a 
husband  in  his  wife,  notwithstanding  rumors  of  his  or  her  adultery, 
'and  circumstances  tending  to  show  that  they  may  be  true,  ought  not 
to  be  treasured  up  and  relied  upon  as  condonation.88  Forgiveness 
of  one  act  is  not  forgiveness  of  other  unknown  acts ;  but,  when  the 
terms  of  the  forgiveness  are  general,  it  is  not  necessary  that  there 
should  be  actual  knowledge  of  each  distinct  offense.89 

SAME— RECRIMINATION 

109.  Recrimination  is  a  countercharge  in  a  suit  for  divorce  that  the 
complainant  has  been  guilty  of  an  offense  constituting  a 
ground  for  divorce.  Adultery  is  universally,  and  any  con- 
duct which  is  ground  for  divorce  is  in  most  states,  a  com- 
plete bar  to  a  divorce  when  set  up  in  recrimination. 

In  most  states  it  is  a  good  defense  in  a  suit  for  divorce  that  the 
complainant  has  been  guilty  of  any  conduct  which  constitutes  a 
ground  for  divorce.  This  is  the  doctrine  of  recrimination.  In 
some  states,  as  will  presently  be  seen,  the  doctrine  is  more  or  less 
restricted  by  statute  or  by  judicial  decision;  and  the  extent  to 
which  acts  of  one  spouse  constitutir  g  a  ground  for  divorce  may  be 
set  up  in  bar  of  a  suit  for  divorce  brought  by  the  other  is  not  the 
same  in  all  states. 

The  doctrine  of  recrimination  has  its  foundation  in  the  principle 
that  one  who  asks  relief  must  come  into  court  with  clean  hands.  In 

51;  Armstrong  v.  Armstrong,  32  Miss.  279;  Home  v.  Home,  72  N.  C.  531; 
Cochran  v.  Cochran,  35  Iowa,  477 ;  Shackleton  v.  Shackleton,  48  N.  J.  Eq. 
364,  21  Atl.  935,  27  Am.  St.  Rep.  478 ;  CLAGUE  v.  CLAGUE,  46  Minn.  461,  49 
N.  W.  198,  Cooley  Cas.  Persons  and  Domestic  Relations,  139. 

seDurant  v.  Durant,  1  Hagg.  Ecc.  733;  Brannvell  v.  Bramwell,  3  Hagg. 
Const.  629;  Anon.,  6  Mass.  147 ;  Rogers  v.  Rogers,  122  Mass.  423 ;  Delliber  v. 
Del  liber,  9  Conn.  233 ;  Laycock  v.  Laycock,  52  Or.  610,  98  Pac.  487 ;  Howard 
v.  Howard,  188  Mo.  App.  564,  176  S;>  W.  483 ;  Odom  v.  Odom,  36  Ga.  286. 

87Quincy  v.  Quincy,  10  N.  H.  272;  Poison  v.  Poison,  140  Ind.  310,  39  N. 
E,  498 ;  Shackleton  v.  Shackleton,  48  N.  J.  Eq.  364,  21  Atl.  935,  27  Am.  St 
Rep.  478;  Welch  v.  Welch,  50  Mo.  App.  395. 

s  s  Poison  v.  Poison,  140  Ind.  310,  39  N.  E.  498. 

8»  Rogers  v.  Rogers,  122  Mass.  423;  Shackleton  v.  Shackleton,  48  N.  J.  Eq. 
304,  21  Atl.  935,  27  Am.  St.  Rep.  478. 


282  SEPARATION  AND  DIVORCE  (Cll.  7 

Hoff  v.  Hoff  flo  the  complainant  asked  a  divorce  on  the  ground  of 
extreme  cruelty.  The  defendant,  with  an  answer  denying  cruelty 
filed  a  cross-bill  charging  the  complainant  with  extreme  cruelty. 
The  court  found  both  cases  made  out,  and  awarded  a  divorce  on 
each  bill.  On  appeal  it  was  held  that,  when  the  court  found  that 
"each  party  had  been  guilty  of  such  conduct  as  under  the  statute 
was  cause  for  divorce,  he  should  have  dismissed  both  bills,  and  left 
the  parties  where  their  misbehavior  had  placed  them."  "A  proper 
administration  of  justice,"  it  was  said,  "does  not  require  that  courts 
shall  occupy  their  time  and  the,  time  of  people  who  are  so  unfortu- 
nate as  to  be  witnesses  of  the  misdoings  of  others  in  giving  equita- 
ble relief  to  parties  who  have  no  equities.  And  it  is  as  true  of 
divorce  cases  as  of  any  others  that  a  party  must  come  into  a  court 
of  equity  with  clean  hands.  Divorce  laws  are  made  to  give  relief 
to  the  innocent,  not  to  the  guilty."  91 

In  most  states  the  statutes  have  merely  prescribed  the  grounds 
for  divorce,  and  have  made  no  provision  at  all  respecting  recrimina- 
tion. Under  these  circumstances,  the  courts  assume  that  the  Legis- 
lature intended  to  adopt  the  general  principles  which  had  governed 
the  ecclesiastical  courts  in  England  in  granting  divorces  from  bed 
and  board,  so  far  as  these  principles  are  applicable  and  are  found 
to  be  reasonable.92  In  some  states  the  subject  of  recrimination  is 
covered  by  the  statute,  the  Legislature  having  undertaken  to  speci- 
fy what  conduct  may  be  set  up  by  way  of  recrimination;  and,  of 
course,  in  these  states  the  statute  is  controlling.98 

The  Conduct  Constituting  Ground  for  Recrimination 

In  the  English  ecclesiastical  courts  the  only  conduct  on  the  part 
of  the  complainant  that  could  be  set  up  in  recrimination  to  defeat 

•  o  48  Mich.  281,  12  N.  W.  160.- 

»i  See,  also,  Beeby  v.  Beeby,  1  Hagg.  Ecc.  7S9 ;  Otway  v.  Otway,  13  Prob. 
Div.  141;  Derby  v.  Derby,  21  N.  J.  Eq.  36;  Huhbard  v.  Hubbard.  74  Wis. 
650,  43  N.  W.  655,  6  L.  R.  A.  58 ;  Hall  v.  Hall,  69  W.  Va.  175,  71  S.  E.  103, 
34  L.  R.  A.  (N.  S.)  758 ;  Day  v.  Day,  71  Kan.  385,  80  Pac.  974,  6  Ann.  Cas.i 
169;  Stoneburner  v.  Stoneburner,  11  Idaho,  603,  83  Pac.  938;  Benedicto  v. 
Dela  Rama,  3  Phil.  Rep.  35.  Though  the  rule  that  one  who  comes  into  equity 
must  come  with  clean  hands  would,  where  both  parties  show  grounds  for  di- 
vorce, render  neither  entitled  to  a  decree,  such  rule  is,  on  grounds  of  pub- 
lic policy,  or  the  peculiar  exigencies  of  the  case,  often  relaxed,  and  compara- 
tive rectitude  is  considered.  Weiss  v.  Weiss,  174  Mich.  431,  140  N.  W.  587. 
And  see  Johnsen  v.  Johnsen,  78  Wash.  423,  139  Pac.  189,  1200. 

»2  Morrison  v.  Morrison,  142  Mass.  361,  8  X.  E.  59,  56  Am.  Rep.  688;  Rob- 
bins  v.  Robbins,  140  Mass.  528,  5  N.  E.  837,  54  Am.  Rep.  488. 

»s  Post,  p.  285. 


§  109)  DEFENSES  283 

his  right  to  a  divorce  was  adultery.9*  And  in  some  states  the  of- 
fense set  up  in  recrimination  must  be  like  in  kind  to  that  which  is 
the  ground  on  which  divorce  is  claimed.95  The  rule,  however,  is 
different  under  the  modern  English  statutes ;  °6  and  it  is  not  recog- 
nized in  many  states  in  this  country,  unless  expressly  declared  by 
statute.  The  general  rule  in  this  country  is,  as  stated  by  the  Massa- 
chusetts court,  that  "a  suitor  for  divorce  cannot  prevail  if  open  to 
a  valid  charge,  by  way  of  recrimination,  of  any  of  the  causes  of  di- 
vorce set  out  in  the  statute.  Recrimination  as  a  bar  to  divorce  is 
not  limited  to  a  charge  of  the  same  nature  as  that  alleged  in  the 
libel.  It  is  sufficient  if  the  recrimination  charges  any  of  the  causes 
for  divorce  so  declared  in  the  statute.  The  general  principle  which 
governs  in  a  case  where  one  party  recriminates  is  that  recrimination 
must  allege  a  cause  which  the  law  declares  sufficient  for  a  di- 
vorce." 97  According  to  this  rule,  in  a  suit  for  divorce,  whatever 
may  be  the  ground  alleged  and  relied  upon,  the  defendant  may  set 
up  by  way  of  recrimination  any  conduct  on  the  part  of  the  com- 
plainant which  the  statute  declares  a  ground  for  divorce;  as,  for 
instance,  cruelty  or  desertion  or  drunkenness  in  a  suit  for  divorce 
on  the  ground  of  adultery,  and  vice  versa,  or  cruelty  in  a  suit  for 
divorce  on  the  ground  of  desertion,  and  vice  versa.98 

a*  Harris  v.  Harris,  2  Hagg.  Ecc.  376,  411;  Cocksedge  v.  Cocksedge,  1  Rob. 
Ecc.  90. 

95  Bast  v.  Bast,  82  111.  584;  Huling  v.  Huling,  38  111.  App.  144;  Zimmerman 
v.  Zimmerman,  242  111.  552,  90  N.  E.  192:  Hughes  v.  Hughes,  133  111.  App. 
654;  Bancroft  v.  Bancroft,  4  Boyce  (Del.)  9,  83  Atl.  561;  Richardson  v. 
Richardson,  4  Port.  (Ala.)  467,  30  Am.  Dec.  538.  Misconduct  of  the  husband 
other  than  cruelty  or  infidelity  cannot  be  set  up  as  a  bar  to  his  suit  for  di- 
vorce for  adultery.  Seibert  v.  Seibert  (N.  J.  Ch.)  S3  Atl.  230. 

se  Otway  v.  Otway,  13  Prob.  Div.  141. 

97  Morrison  v.  Morrison,  142  Mass.  361,  8  N.  E.  60,  56  Am.  Rep.  688 ;  CUSH- 
MAN  v.  CUSHMAN,  194  Mass.  38,  79  N.  E.  809,  Cooley  Cas.  Persons  and  Do- 
mestic Relations,  143. 

os  Hall  v.  Hall,  4  Allen  (Mass.)  39;  Clapp  v.  Clapp,  97  Mass.  531;  Handy 
v.  Handy,  124  Mass.  394;  Cumming  v.  Gumming,  135  Mass.  386,  46  Am.  Rep. 
476 ;  Redington  v.  Redington,  2  Colo.  App.  8,  29  Pac.  811 ;  PEASE  v.  PEASE, 
72  Wis.  136,  39  N.  W.  133,  Cooley  Cas.  Persons  and  Domestic  Relations,  141 ; 
Hubbard  v.  Hubbard,  74  Wis. -650,  43  N.  W.  655,  6  L.  R.  A.  58;  Church  v. 
Church,  16  R.  I.  667,  19  Atl.  244,  7  L.  R.  A.  385;  Grim  v.  Crin*  66  Or.  258, 
134  Pac.  13;  Collett  v.  Collett,  170  Mo.  App.  590,  157  S.  W.  90;  Egbers  v. 
Egbers,  79  Wash.  72,  139  Pac.  767;  Wilson  v.  Wilson,  89  Neb.  749,  132  N.  W. 
401 ;  Green  v.  Green,  125  Md.  141,  93  Atl.  400,  L.  R.  A.  1915E,  972,  Ann.  Cas. 
1917A,  175 ;  Nagel  v.  Nagel,  12  Mo.  53 ;  Ryan  v.  Ryan,  9  Mo.  539 ;  Shackett 
v.  Shackett,  49  Vt.  195;  Conant  v.  Conant,  10  Cal.  249,  70  Am.  Dec.  717; 
Johns  V.  Johns,  29  Ga.  718;  Ribet  v.  Ribet,  39  Ala.  348;  Holmes  v.  Holmes, 


284  SEPARATION  AND  DIVORCE  (Ch.  7 

In  Pease  v.  Pease,"  a  husband  sued  for  divorce  on  the  ground  of 
his  wife's  adultery,  and  the  wife  was  permitted  to  defeat  the  suit 
by  showing,  in  recrimination,  that  he  had  been  guilty  of  cruelty 
that  would  have  entitled  her  to  a  divorce.  "We  do  not  perceive," 
said  the  court,  "upon  what  logical  principle  the  court  could  grant 
redress  to  the  husband  for  the  adultery  of-  the  wife  when  he  him- 
self has  been  guilty  of  an  offense  which  would  give  her  a  right  to 
an  absolute  divorce  were  she  was  without  fault.  Both  parties  have 
violated  the  marriage  contract,  and  can  the  court  look  with  more 
favor  upon  the  breach  of  one  than  the  other?  It  is  an  unquestioned 
principle  that,  where  one  party  is  shown  to  have  been  guilty  of 
adultery,  such  party  cannot  have  a  divorce  for  the  adultery  com- 
mitted by  the  other.1  *  *  *  In  the  forum  of  conscience,  adul- 
tery of  the  wife  may  be  regarded  as  a  more  heinous  violation  of 
social  duty  than  cruelty  by  the  husband.  But  the  statute  treats 
them  as  of  the  same  nature  and  same  grade  of  delinquency.  It  is 
true,  the  cruelty  of  the  husband  does  not  justify  the  adultery  of 
the  wife;  neither  would  his  own  adultery;  but  still  the  latter  has 
ever  been  held  a  bar.  And  where  both  adultery  and  cruelty  are 
made  equal  offenses,  attended  with  the  same  legal  consequences, 
how  can  the  court,  in  the  mutual  controversy,  discriminate  between 
the  two,  and  give  one  the  preference  over  the  other?  It  seems  to 
us  that,  as  the  law  has  given  the  same  effect  to  the  one  offense  as 
the  other,  the  court  should  not  attempt  to  distinguish  between 
them,  but  treat  them  alike,  and  hold  one  a  bar  to  the  other." 

It  has  been  held  that  recrimination,  to  constitute  a  valid  defense, 
must  arise  out  of  the  fact  that  the  acts  or  conduct  for  which  the 
complainant  seeks  a  divorce  were  induced  by  or  in  retaliation  of 
complainant's  conduct,  relied  upon  in  recrimination.2  This,  how- 
ever, is  contrary  to  the  great  weight  of  authority.  To  allow  any 

Walk.  (Miss.)  474;  Adams  v.  Adams,  17  N.  J.  Eq.  324;  Reid  v.  Reid,  21 
N.  J.  Eq.  331;  Harvey  v.  Harvey  (N.  J.  Cli.)  7  Atl.  871;  Wilson  v.  Wilson, 
40  Iowa,  230;  Stoneburner  v.  Stoneburner,  11  Idaho,  603,  83  Pac.  938. 

89  PEASE  v.  PEASE,  72  Wis.  136,  39  N.  W.  133,  Cooley  Gas.  Persons  and 
Domestic  Relations,  141. 

i  Proctor  v.  Proctor,  2  Hagg.  Const.  292 ;  Brisco  v.  Brisco,  2  Add.  Ecc. 
259;  Astley  t.  Astley,  1  Hagg.  Ecc.  714;  Wood  v.  Wood,  2  Paige  (N.  Y.)  108; 
Smith  v.  Smith,  4  Paige  (N.  T.)  432,  27  Am.  Dec.  75;  Smith  v.  Smith,  19 
Wis.  522 ;  Mattox  v.  Mattox,  2  Ohio,  233,  15  Am.  Dec.  547 ;  Christianberry  v. 
Christianberry,  3  Blackf.  (Ind.)  202,  25  Am.  Dec.  96;  Home  v.  Home,  72  N. 
C.  530;  Haiues  v.  Haines,  62  Tex.  216;  Flavell  v.  Flavell,  20  N.  J.  Eq.  211; 
Adams  v.  Adams,  17  N.  J.  Eq.  324 ;  Reid  v.  Reid,  21  N.  J.  Eq.  331. 

*  Trigg  v.  Trigg  (Tex.)  18  S.  W.  313. 


§  109)  DEFENSES  285 

such  doctrine  would  exclude  the  charge  of  adultery  by  way  of 
recrimination  in  a  suit  for  divorce  on  the  ground  of  adultery. 

Same — Statutes  Governing  Recrimination 

In  some  of  the  states  the  subject  of  recrimination  is  entirely  cov- 
ered by  the  statutes,  and  no  act  can  be  set  up  by  way  of  recrimina- 
tion unless  the  case  comes  within  the  statute.  In  Minnesota  it  is 
provided  that,  "in  any  action  brought  for  a  divorce  on  the  ground  of 
adultery,"  the  court  may  deny  a  divorce  "when  it  is  proved  that 
the  plaintiff  has  also  been  guilty  of  adultery."  It  has  been  heM 
under  this  statute  that  the  adultery  of  the  plaintiff  cannot  be  set 
up  by  way  of  recrimination,  unless  the  adultery  of  the  defend- 
ant is  the  ground  of  divorce  relied  upon.8  In  other  words,  under 
such  a  statute  we  have  the  absurd  result  that,  while  adultery 
by  the  husband  will  bar  a  suit  by  him  for  a  divorce  for  the  wife's 
adultery,  it  will  not  bar  a  suit  by  him  for  a  divorce  on  the  ground 
of  some  less  heinous  offense  by  the  wife,  such  as  desertion,  cruel- 
ty, or  drunkenness.  It  would  have  been  better  if  the  Legisla- 
ture had  left  the  question  to  the  courts  to  be  determined  on  prin- 
ciple. So,  in  Pennsylvania,  where  a  statute  provided  that  if  the 
defendant  in  a  divorce  suit  should  allege  and  prove  certain  things, 
they  should  be  a  good  defense  and  a  perpetual  bar,  it  was  held 
that  no  other  defense  than  those  mentioned  in  the  statute  could 
be  interposed.4 

In  a  number  of  states  it  is  expressly  declared  by  statute,  in  ac- 
cordance with  the  general  rule  obtaining  both  in  England  and  in 
this  country,  even  in  the  absence  of  statutory  provision,  that  a  di- 
vorce shall  not  be  granted  on  the  ground  of  adultery,  when  both 
parties  are  guilty  of  such  an  offense.  In  a  few  states  it  is  provided 
that  there  shall  be  no  divorce  for  any  cause  when  the  complainant 
was  guilty  of  "like  conduct."  If  such  a  statute  is  to  be  strictly  con- 
strued, the  only  acts  that  can  be  set  up  by  way  of  recrimination 
would  be  adultery  when,  and  only  when,  a  divorce  is  sought  on  the 
ground  of  adultery;  desertion  when  a  divorce  is  sought  on  the 
ground  of  desertion ;  cruelty  when  a  divorce  is  sought  on  the 
ground  of  cruelty,  etc.5  It  is  doubtful,  however,  whether  the  stat- 
ute should  be  so  strictly  construed,  for  the  words  "like"  conduct" 

s  Buerfening  v.  Buerfening,  23  Minn.  563. 
4Ristine  v.  Ristine,  4  Rawle  (Pa.)  460. 

5  There  have  been,  and  perhaps  there  are  now,  such  statutes  In  Michigan, 
Nebraska,  Wyoming,  and  Arizona.  Stim.  Am.  St.  Law,  §  62rfl 


286  SEPARATION  AND  DIVORCE  (Ch.  7 

\ 

might  well  be  taken  to  mean  conduct  constituting  ground  for  di- 
vorce." 

Same — Conduct  Condoned 

As  to  whether  an  offense  which  has  been  condoned  can  be  set  up 
by  way  of  recrimination,  there  has  been  some  conflict  in  the  author- 
ities. Perhaps  in  no  case  has  the  offense  of  cruelty  or  desertion 
been  allowed  as  a  defense  after  condonation.  The  conflict  has 
arisen  in  the  case  of  adultery.  In  England,  by  statute,  the  courts 
are  given  a  discretionary  power  to  refuse  a  divorce  on  the  ground  of 
adultery,  if  the  complainant  has  been  guilty  of  adultery  during  the 
marriage;  and  some  of  the  judges  have,  in  the  exercise  of  this  dis- 
cretion, refused  a  divorce  on  the  ground  of  adultery,  because  of 
adultery  by  the  complainant  which  the  defendant  had  condoned.7 
Authorities  in  New  York  are  to  the  same  effect.8  By  the  better 
opinion,  however,  both  in  England  and  in  this  country,  and  wheth- 
er there  is  any  statute  on  the  subject  or  not,  adultery  by  one  spouse, 
if  it  has  been  condoned  by  the  other,  is  no  bar  to  a  suit  for  a  divorce 
for  the  subsequent  adultery  of  the  other.9  An  offense,  when  it  is 
condoned,  ceases  to  be  a  ground  for  a  divorce,  and  for  this  reason, 
if  for  no  other,  it  is  not  ground  for  recrimination.  The  question  was 
fully  considered  by  the  Massachusetts  court  in  Gumming  v.  Gum- 
ming;10 and  after  a  review  of  the  authorities,  and  the  reasons  for 

«  See  Hoff  v.  Hoff,  48  Mich.  281,  12  N.  W.  160.  In  this  case  the  divorce 
was  asked  on  the  ground  of  extreme  cruelty,  and  extreme  cruelty  was  the 
conduct  set  up  by  way  of  recrimination,  so  that  it  was  strictly  within  the 
words  of  the  statute.  But  the  language  of  the  court  makes  it  clear  that  the 
broader  view  was  taken  of  the  statute.  And  see  Morrison  v.  Morrison,  64 
Mich.  53.  30  N.  W.  903. 

7  Seller  v.  Seller,  1  Swab.  &  T.  482 ;   Goode  v.  Goode,  2  Swab.  &  T.  253. 

s  Wood  v.  Wood,  2  Paige  (N.  Y.)  108 ;  Morrell  v.  Morrell,  1  Barb.  (N.  Y.) 
318. 

»  Gumming  v.  Gumming,  135  Mass.  386,  46  Am.  Rep.  476;  Anichini  v.  Ani- 
chini,  2  Curt.  Ecc.  210;  Storms  v.  Storms,  71  N.  J.  Eq.  549,  64,  Atl.  700; 
Talley  v.  Talley,  215  Pa.  281,  64  Atl.  523;  Jones  v.  Jones,  18  N.  J.  Eq.  33, 
90  Am.  Dec.  607;  Masten  v.  Masten,  15  N.  H.  159.  See  Bleck  v.  Bleck,  27 
Hun  (N.  Y.)  296.  In  Gumming  v.  Gumming,  supra,  the  rule  was  applied  in 
the  adultery  by  the  wife,  which  had  been  condoned  by  the  husband.  "An 
act  of  adultery  committed  by  the  husband,  and  forgiven  for  years,  should  not 
be  held  to  compel  the  husband  to  submit  without  redress  to  the  faithlessness 
and  unrestrained  profligacy  of  his  wife.  The  penalty  is  too  severe  for  a 
forgiven  offense.  It  is  better  to  hold  that,  when  the  erring  party  is  re- 
ceived back  and  forgiven,  the  marriage  contract  is  renewed,  and  begins  as 
res  integra,  and  that  it  is  for  the  party,  and  not  for  the  courts,  to  forgive 
the  new  offense."  Jones  v.  Jones,  supra. 

10  135  Mass.  386,  46  Am.  Rep.  476. 


§  110)  EXTRATERRITORIAL  EFFECT   OF  DIVORCE  287 

the  rule,  it  was  held  that  the  court  should  exercise  no  discretion 
in  the  matter,  but  should  apply  the  rule  in  all  cases.  Even  where 
a  statute  expressly  provides,  as  it  does  in  some  states,  that  a  di- 
vorce shall  not  be  granted  on  the  ground  of  adultery  where  both 
parties  have  been  guilty,  it  does  not  seem  that  the  statute  should 
be  construed  as  applying  to  adultery  that  has  been  condoned.11 


EXTRATERRITORIAL  EFFECT  OF  DIVORCE 

110.  A  decree  of  divorce,  rendered  in  accordance  with  the  law  of 
the  forum  by  a  court  of  competent  jurisdiction,  is  valid 
everywhere,  and  will  be  given  full  force  and  effect  in  all 
other  states.  This  rule  is,  however,  subject  to  the  excep- 
tion that  the  decree  is  subject  to  collateral  attack  for  want 
of  jurisdiction. 

Under  and  by  virtue  of  the  "full  faith  and  credit"  clause  of  the 
federal  Constitution,12  decrees  of  divorce,  rendered  by  a  court  of 
competent  jurisdiction  and  valid  when  rendered,  are  conclusive 
in  every  other  state.  This  provision,  however,  does  not  preclude  an 
inquiry  as  to  the  jurisdiction,  in  so  far  as  it  rests  on  the  domicile 
of  the  parties,  of  the  court  rendering  the  decree.13  It  follows  that, 
as  the  court  has  jurisdiction  when  both  parties  are  domiciled  in 
the  state  where  the  divorce  is  sought,14  the  decree  of  divorce,  if  val- 
id there,  is  valid  everywhere ; 1B  and,  on  the  other  hand,  as  the 

11  See  dictum  in  Gumming  v.  Cumming,  135  Mass.  386,  46  Am.  Rep.  476, 
and  in  Jones  v.  Jones,  18  N.  J.  Eq.  33,  90  Am.  Dec.  607. 

12  Const.  U.  S.  art.  4,  §  1,  providing  that  full  faith  and  credit  shall  be  given 
in  each  state  to  the  public  acts,  records,  and  judicial  proceedings  of  every 
other  state.     Ditson  v.  Ditson,  4  R.  I.  87. 

is  HADDOCK  v.  HADDOCK,  201  U.  S.  562,  26  Sup.  Ct.  525,  50  L.  Ed.  867,  5 
Ann.  Cas.  1,  Cooley  Cas.  Persons  and  Domestic  Relations,  144 ;  Hood  v. 
State,  56  Ind.  263,  26  Am.  Rep.  21;  Hunt  v.  Hunt,  72  N.  Y.  217,  28  Am. 
Rep.  129;  Gildersleeve  v.  Gildersleeve,  88  Conn.  689,  92  Atl.  684,  Ann.  Cas. 
1916B,  920. 

ii  Ante,  p. -244. 

is  Hall  v.  Hall,  139  App.  Div.  120,  123  N.  Y.  Supp.  1056,  reversing  67  Misc. 
Rep.  267,  122  N.  Y.  Supp.  401;  Guggenheim  v.  Wahl,  203  N.  Y.  390,  96  N. 
E.  726,  Ann.  Cas.  1913B,  201 ;  Zentzis  v.  Zentzis,  163  Wis.  342,  158  N.  W.  284 ; 
Hood  v.  Hood,  11  Allen  (Mass.)  196,  87  Am.  Dec.  709;  Burlen  v.  Shannon, 
115  Mass.  438 ;  Cheely  v.  Clayton,  110  U.  S.  701,  4  Sup.  Ct.  328,  28  L.  Ed.  298 ; 
McGill  v.  Deming,  44  Ohio  St.  645,  11  N.  E.  118.  See,  also,  Atherton  v.  Ather- 
ton,  181  U.  S.  155,  21  Sup.  Ct.  544,  45  L.  Ed.  794,  reversing  155  N.  Y.  129, 
49  N.  E.  933,  40  L.  R.  A.  291,  63  Am.  St.  Rep.  650.  So,  where  the  parties  both 


288  SEPARATION  AND  DIVORCE  (Ch.  7 

court  has  no  jurisdiction  if  neither  party  is  domiciled  in  the  state 
where  divorce  is  sought,16  the  decree,  whether  regarded  as  valid 
in  that  state  or  not,  is  of  no  force  in  other  states.17  In  accordance 
with  these  principles  it  has  been  held  that  the  dissolution  of  an 
Indian  marriage  contract  according  to  the  tribal  laws  and  customs 
will  be  upheld,  in  the  absence  of  a  federal  statute  invalidating  such 
laws  and  customs.18  So,  too,  a  divorce  rendered  in  a  foreign  coun- 
try, if  valid  according  to  the  law  of  that  country,  will  be  recognized 
by  our  courts,19  if  it  appears  that  the  jurisdiction  to  grant  a  divorce 
according  to  the  foreign  law  existed.20 

It  may  be,  however,  that  only  one  of  the  parties  is  domiciled  in 
the  state  when  divorce  is  sought.  As  to  the  effect  of  the  decree  in 
such  cases,  there  is  a  great  conflict  of  opinion.  The  general  rule 
seems  to  be  that,  if  the  defendant  does  not  reside  in  the  state  where 
suit  is  brought,  the  plaintiff  must  reside  there  or  the  court  will 
have  no  jurisdiction.21  The  conflict  in  this  class  of  cases  grows 
out  of  the  difference  of  opinion  as  to  the  nature  of  the  proceeding 
for  divorce,  viz.,  whether  it  is  a  proceeding  in  rem  or  a  proceeding 

appear  and  submit  to  the  jurisdiction  of  the  court,  the  decree  is  valid.  Bled- 
soe  v.  Seaman,  77  Kan.  679,  95  Pac.  576. 

i« Ante,  p.  245. 

IT  State  v.  Armington,  25  Minn.  29;  Barber  v.  Root,  10  Mass.  260;  People 
v.  Dawell,  25  Mich.  247,  12  Am.  Rep.  260.  A  decree  of  divorce  by  a  court 
In  Nevada  undertaking  to  dispose  of  the  marriage  status  of  spouses  not 
residents  there  would  be  a  nullity,  as  that  state  has  no  power  either  by 
legislative  act  or  by  decree  of  its  court  to  fix  the  matrimonial  status  of  one 
only  transiently  commorant  therein.  Lister  v.  Lister,  86  N.  J.  Eq.  30,  97 
Atl.  170. 

«  La  Framboise  v.  Day,  136  Minn.  239,  161  N.  W.  529,  L.  R.  A.  1917D,  571; 
James  v.  Adams,  56  Okl.  450,  155  Pac.  1121. 

i»  Jewish  divorces,  granted  by  rabbis  in  Russia  and  Rumania,  being  valid 
there,  are  valid  here.  In  re  Spondre's  Estate,  98  Misc.  Rep.  524,  162  N.  Y. 
Supp.  943;  Miller  v.  Miller,  70  Misc.  Rep.  368,  128  N.  Y.  Supp.  787.  The 
law  of  Turkey  governing  the  marital  status  of  a  Christian  man  and  woman 
domiciled  there,  that  the  act  of  the  wife  renouncing  Christianity,  and  em- 
bracing the  Mohammedan  religion,  and  marrying  a  Mohammedan,  nullifies 
the  former  marriage,  will  be  given  force  in  Massachusetts.  Kapigian  v.  Der 
Minassian,  212  Mass.  412,  99  N.  E.  264,  Ann.  Cas.  1913D,  535. 

20  See  Saperstone  v.  Saperstone,  73  Misc.  Rep.  631,  131  N.  Y.  Supp.  241, 
where  a  rabbinical  divorce  was  refused  recognition  on  the  ground  that  the 
Russian  rabbi  did  not  have  jurisdiction. 

21  Gildersleeve  v.  Gildersleeve,  88  Conn.  689,  92  Atl.  684,  Ann.  Cas.  1916B, 
920 ;    Dunham  v.  Dunham,  162  111.  589,  44  N.  E.  841,  35  L.  R.  A,  70 ;   Adams 
v.  Adams,  154  Mass.  290,  28  N.  E.  260,  13  L.  R.  A.  275;    People  v.  Dawell, 
25  Mich.  247,  12  Am.  Rep.  260;    Hoffman  v.  Hoffman,  46  N.  Y.  30,  7  Am. 
Rep.  299 ;  Lister  v.  Lister,  86  N.  J.  Eq.  30,  97  Atl.  170. 


§   110)  EXTRATERRITORIAL  EFFECT  OF  DIVORCE  289 

in  personam.22  Regarding  the  actual  subject-matter  of  the  litiga- 
tion as  the  marriage  status,  the  general  doctrine  is  that  the  proceed- 
ing is  in  rem ;  the  status  being  the  res.23  This  doctrine  has,  how- 
ever, been  modified  in  some  jurisdictions,  where  it  has  been  recog- 
nized that  the  proceeding  is  not  strictly  in  rem,  but  contains  a  per- 
sonal element.  In  these  jurisdictions  the  proceeding  is  regarded  as 
quasi  in  rem.24 

It  is  evident  that,  in  cases  where  only  one  party  is  domiciled  in 
the  state  where  divorce  is  sought,  there  is  only  partial  jurisdiction 
of  the  res.  On  the  view  the  courts  have  taken  of  the  nature  of 
divorce  proceedings  as  in  rem  or  in  personam  depends  the  decision 
when  the  question  of  the  extraterritorial  effect  of  the  decree  has 
arisen.  In  some  states  the  courts,  regarding  the  proceeding  as  one 
in  rem,  have  held  that  only  such  notice  to  the  nonresident  defend- 
ant is  necessary  as  is  required  by  the  local  law,  and  that  the  decree 
so  rendered  is  binding  in  all  courts.25 


22  A  proceeding  In  personam  is  one  which  seeks  to  fix  a  personal  liability 
on  the  defendant,  such  as  an  action  to  recover  a  money  judgment.    A  pro- 
ceeding in  rem,  on  the  other  hand  is  aimed  only  at  defendant's  property  or 
something  within  the  court's  jurisdiction.    A  judgment  in  personam  requires 
personal  service  on  the  defendant  within  the  limits  of  the  court's  jurisdiction, 
while  a  judgment  in  rem  does  not  require  service  within  the  jurisdiction, 
except  on  the  thing  itself;   service  on  the  defendant  outside  the  jurisdiction 
by  publication  or  otherwise  being  generally  sufficient.     See  Cross  v.  Arm- 
strong, 44  Ohio  St.  613,  10  N.  E.  160. 

23  McGill  v.  Deming,  44  Ohio  St.  645,  11  N.  E.  118 ;    Ellison  v.  Martin,  53 
Mo.  575;    Dunham  v.  Dunham,  162  111.  589,^44  N.  E.  841,  35  L.- R.  A.  70; 
Butler  v.  Washington,  45  La.  Ann.  279,  12  South.  356,  19  L.  R.  A.  814 ;    In  re 
Ellis'  Estate,  55  Minn.  401,  56  N.  W.  1056,  23  L.  R.  A.  287,  43  Am.  SL  Rep. 
514. 

2*  Doughty  v.  Doughty,  27  N.  J.  Eq.  315;  McFarlane  v.  McFarlane,  43  Or. 
477,  73  Pac.  203,  75  Pac.  139. 

25  Ditson  v.  Ditson,  4  R.  I.  87,  is  the  leading  case.  The  doctrine  has  been 
followed  and  approved  in  Kline  v.  Kline,  57  Iowa,  386,  10  N.  W.  825,  42  Am. 
Rep.  47;  Thurston  v.  Thurston,  58  Minn.  279,  59  N.  W.  1017;  Doerr  v.  For- 
sythe,  50  Ohio  St.  726,  35  N.  E.  1055,  40  Am.  St.  Rep.  703 ;  Rodgers  v.  Rodgers, 
56  Kan.  483,  43  Pac.  779;  McCormick  v.  McCormick,  82  Kan.  31,  107  Pac. 
546;  Howard  v.  Strode,  242  Mo.  210,  146  S.  W.  792,  Ann.  Gas.  1913C,  1057; 
Searles  v.  Searles,  140  Minn.  385,  168  N.  W.  133;  Kenner  v.  Kenner,  13£ 
Tenn.  211,  201  S.  W.  779,  L.  R.  A.  1918E,  587,  rehearing  denied  139  Tenn. 
700,  202  S.  W.  723,  L.  R.  A.  1918E,  587;  Dunham  v.  Dunham,  162  111.  589, 
44  N.  E.  841,  35  L.  R.  A.  70.  In  these  cases  it  was,  however,  conceded  that  a 
decree  for  alimony,  or  for  custody  of  the  children,  or  affecting  property  rights, 
was  not  conclusive,  as  such  decrees  were  in  personam.  But  see  Hawkins  v. 
Ragsdale,  80  Ky.  353,  44  Am.  Rep.  483,  where  the  rule  was  under  the 
statute  extended  even  to  a  decree  affecting  dower.  On  the  general  doctrine, 
TIFF.P.&  D.REL.(3o  ED.)— J^ 


290  SEPARATION  AXD  DIVORCE  (Ch.  7 

In  New  Jersey  and  a  few  other  states  the  courts  have  taken  the 
position  that  a  proceeding  for  divorce  is  quasi  in  rem,  not  requiring 
actual  personal  service  within  the  jurisdiction  of  the  court,  and  that 
the  service  is  sufficient  to  render  the  decree  binding  extraterritorial- 
ly  if  the  best  practicable  service  is  made,  such  as  service  by  mail 
or  personal  service  outside  the  territorial  jurisdiction  of  the  court.26 
The  courts  of  New  York  and  some  other  states  have  adopted  the 
contrary  rule,  and,  on  the  theory  that  the  proceeding  for  divorce 
is  in  personam,  have  held  that  a  divorce  obtained  in  a  state  where 
the  plaintiff  alone  is  domiciled  is  of  no  extraterritorial  effect,  if 
the  defendant  were  not  personally  served  with  notice  within  the 
jurisdiction  of  the  court  granting  the  divorce,  or  voluntarily  ap- 
peared and  submitted  to  the  jurisdiction,27  unless  the  state  of  the 

see,  also,  Hilbish  v.  Hattle,  145  Ind.  59,  44  N.  E.  20,  33  L.  R.  A.  783,  where, 
however,  there  seems  to  have  been  personal  service  on  the  defendant. 

26  Felt  v.  Felt,  59  N.  J.  Eq.  606,  45  Atl.  105,  49  Ati.  1071,  47  L.  R.  A.  546, 
83  Am.  St.  Rep.  612;    Doughty  v.  Doughty,  28  N.  J.  Eq.  581;    Magowan  v. 
Magowan,  57  N.  J.  Eq.  195,  39  Atl.  364.     See,  also,  Smith  v.  Smith,  43  La. 
Ann.  1140, 10  South.  248,  and  Van  Orsdal  v.  Van  Orsdal,  67  Iowa,  35,  24  N.  W. 
579,  in  which  personal  service  was  had  outside  the  jurisdiction  of  the  court 
rendering  the  decree.     The  New  Jersey   rule  has   also  been   approved   in 
Massachusetts.     Burlen  v.  Shannon,  115  Mass.  438;    Loker  v.  Gerald,  157 
Mass.  42,  31  N.  E.  709,  16  L.  R.  A.  497,  34  Am.  St.  Rep.  252.    Compare  State 
v.  Armington,  25  Minn.  29. 

27  People  v.  Baker,  76  N.  Y.  78,  32  Am.  Rep.  274,  is  the  leading  case.    See 
also,  In  re  Kimball,  155  N.  Y.  62,  49  N.  E.  331 ;    Williams  v    Williams,  130 
N.  Y.  193,  29  N.  E.  98,  14  L.  R.  A.  220,  27  Am.  St.  Rep.  517 ;   Ransom  v.  Ran- 
som, 54  Misc.  Rep.  410,  104  N.  Y.  Supp.  198;    Cross  v.  Cross,  108  N.  Y.  628, 
15  N.  E.  333;    Barber  v.  Barber,  89  Misc.  Rep.  519,  151  N.  Y.  Supp.  1064; 
Olmsted  v.  Olmsted,  190  N.  Y.  458,  83  N.  E.  569,  123  Am.  St.  Rep.  585 ;   O'Dea 
v.  O'Dea,  101  N.  Y.  23,  4  N.  E.  110.    In  Jones  v.  Jones,  108  N.  Y.  415,  15  N. 
E.  707,  2  Am.  St.  Rep.  447,  the  doctrine  of  People  v.  Baker  was  approved, 
but  the  decree  was  held  valid,  because  the  defendant  had  voluntarily  ap- 
peared in  the  suit  in  the  Texas  court.     See,  also,  Strauss  v.  Strauss,  122 
App.  Div.  729,  107  N.  Y.  Supp.  842.     The  doctrine  of  the  New  York  courts 
has  also  been  approved  in  Cook  v.  Cook,  56  Wis.  195,  14  N.  W.  33,  443,  43 
Am.  Rep.  706;    Harris  v.  Harris,  115  N.  C.  587,  20  S.  E.  187,  44  Am.  St. 
Rep.  471 ;    Perkins  v.  Perkins,  225  Mass.  82,  133  N.  E.  841,  L.  R.  A.  1917B, 
1028;    State  v.  Duncan,  110  S.  C.  253,  96  S.  E.  294;    Jacob!  v.  Jacobi,  45 
App.  D.  C.  442;    Bruguiere  v.  Bruguiere,  172  Cal.  199,  155  Pac.  988,  Ann. 
Gas.  1917E,  122 ;   Pettis  v.  Pettis,  91  Conn.  608,  101  Atl.  13,  4  A.  L.  R.  852 ; 
McCreery  v.  Davis,  44  S.  C.  195,  22  S.  E.  178,  28  L.  R.  A.  655,  51  Am.  St. 
Rep.  794.    And  see  HADDOCK  v.  HADDOCK,  201  U.  S.  562,  26  Sup.  Ct.  525,  50 
L.  Ed.  867,  5  Ann.  Cas.  1,   Cooley  Cas.  Persons  and   Domestic  Relations, 
144;    affirming  178  N.  Y.  557,  70  N.   E.  1099,  where  the  decree  of  divorce 
was  obtained  by  the  husband,  domiciled  in  Connecticut,  with  only  construc- 
tive service  on  the  wife,  whose  domicile  was  New  York.  •  Nevertheless  the 
New  York  courts  recognize  the  rule  that  the  party  obtaining  the  divorde 


§  111)  LEGISLATIVE   DIVORCE  291 

former  was  the  matrimonial  domicile  of  the  parties,28  in  which  case 
constructive  service  by  publication  is  sufficient.29  This  also  seems 
to  be  the  rule  adopted  by  the  United  States  Supreme  Court.30 

In  accordance  with  principles  already  stated  the  injured  party 
may  for  the  purposes  of  divorce  acquire  a  new  domicile,  and  nei- 
ther spouse  can  by  unjustifiably  abandoning  the  other  acquire  a 
new  matrimonial  domicile.31 


LEGISLATIVE  DIVORCE 

111.  In  the  absence  of  constitutional  restrictions,  the  legislature  of 
a  state  has  the  power  to  grant  divorces  by  special  act ;  and 
such  an  act  is  not  within  the  constitutional  prohibition 
against  laws  impairing  the  obligation  of  contracts. 

The  English  ecclesiastical  courts  were  limited  to  the  granting  of 
divorces  from  bed  and  board,  and  could  not  grant  a  divorce  a  vin- 
culo  matrimonii.  This  power,  however,  was  exercised  by  Parlia- 

may  be  estopped  to  set  up  the  want  of  jurisdiction.    Starbuck  v.  Starbuck, 

173  N.  Y.  508,  66  N.  E.  193,  93  Am.  St.  Eep.  631 ;   Kaufman  v.  Kaufman,  177 
App.  Div.  162,  163  N.   Y.  Supp.  566,   affirming   (Sup.)   160  N.  Y.  Supp.   19. 
Where  defendant  is  served  in  the  state  of  the  forum  or  appears,  a  judgment 
in  any  state  of  the  Union,  irrespective  of  the  ground  upon  which  it  was 
granted,  is  within  the  full  faith  and  credit  clause  of  the  federal  Constitu- 
tion.   In  re  Calta'bellotta's  Will,  183  App.  Div.  753,  171  N.  Y.  Supp.  82. 

28  The  term  "matrimonial  domicile"  means  that  place  where  one  spouse 
is  rightfully  domiciled,  and  where  the  other  spouse  ought  to  be  in  order  to 
fulfill  the  marital  obligations.  Decrees  of  divorce  of  other  states  recovered 
upon  service  by  publication  are  not  judgments  in  personam,  and,  if  not  ren- 
dered by  the  court  of  the  last  matrimonial  domicile,  are  not  within  the  full 
faith  and  credit  clause  of  the  federal  Constitution,  and  are  only  recognized 
by  otner  states  by  reason  of  comity,  and  will  not  prevail  where  in  contra- 
vention of  the  public  policy  of  the  state.  Ball  v.  Cross,  106  Misc.  Rep.  184, 

174  N.  Y.  Supp.  259.     Where  the  husband  and  wife  were  married  in  New 
York,  but  the  husband  had  always  resided  in  Connecticut,  a  decree  of  New 
York  divorcing  the  parties  a  mensa  et  thoro  cannot  claim  recognition   as 
a  decree  ot  the  court  of  matrimonial  domicile.    Pettis  v.  Pettis,  91  Conn.  608, 
101  Atl.  13,  4  A.  L.  R.  852. 

2»  Post  v.  Post,  149  App.  Div.  452,  133  N.  Y.  Supp.  1057,  affirmed  210  N. 
Y.  607,  104  N.  E.  113k ;  Buckley  v.  Buckley,  50  Wash.  213,  96  Pac.  1079,  126 
Am.  St.  Rep.  900;  Montmorency  v.  Montmorency  (Tex.  Civ.  App.)  139  S.  W. 
1168 ;  People  ex  rel.  Catlin  v.  Catlin,  69  Misc.  Rep.  191,  126  N.  Y.  Supp.  350. 

«°  Atherton  v.  Atherton,  181  U.  S.  155,  21  Sup.  Ct.  544,  45  L.  Ed.  794 ;  HAD- 
DOCK v.  HADDOCK,  201  U.  S.  562,  26  Sup.  Ct.  525,  50  L.  Ed.  867,  5  Ann.  Gas, 
1,  Cooley  Cas.  Persons  and  Domestic  Relations,  144;  Thompson  v.  Thomp- 
son, 226  U.  S.  551,  33  Sup.  Ct.  129,  57  L.  Ed.  347. 

si  See  ante,  p.  245. 


292  SEPARATION  AND  DIVORCE  (Ch.  7 

ment;  and,  when  this  country  was  settled,  the  legislative  assem- 
blies of  the  colonies  followed  the  example  of  Parliament,  and 
treated  the  subject  as  within  their  province.  Since  then  divorces 
a  vinculo  have  been  granted  by  special  act  of  the  Legislature  in 
very  many  of  the  states.  In  some  states  the  power  of  the  Legisla- 
ture to  grant  divorces  is  restricted  by  constitutional  provisions.32 
In  the  absence  of  such  restrictions,  however,  it  is  well  settled  that 
the  power  exists.  In  a  late  case  the  question  came  before  the  Su- 
preme Court  of  the  United  States ;  and  it  was  held  that  a  special  act 
of  a  territorial  Legislature  dissolving  the  marriage  relation  between 
a  husband  resident  in  the  territory  and  a  wife  who  was  a  nonresi- 
dent was  a  valid  act  of  legislative  power,  and  that  it  was  not  ren- 
dered invalid  by  the  fact  that  there  was  no  cause  for  divorce,  and 
that  the  wife  was  not  notified.83  It  was  also  held  that  such  an  act 
does  not  violate  the  clause  of  the  federal  Constitution  prohibiting 
laws  impairing  the  obligation  of  contracts,  since  marriage  is  not  a 
contract,  within  the  meaning  of  that  provision.34 

In  some  states  the  granting  of  divorces  by  the  Legislature  is  re- 
garded as  an  encroachment  on  the  judicial  powers.35  And  it  has 
also  been  held  that  the  passage  of  a  special  act  granting  a  divorce 
contravenes  the  constitutional  provision  forbidding  the  enactment 
of  special  laws.36 

32  Sparhawk  v.  Sparhawk,  116  Mass.  315;   State  v.  Fry,  A  Mo.  120. 

»«  MAYNARD  v.  HILL,  125  U.  S.  190,  8  Sup.  Ct.  723,  31  L.  Ed.  654,  Cooley 
Cas.  Persons  and  Domestic  Relations,  1 ;  Cronise  v.  Cronise.  54  Pa.  255 ; 
Crane  v.  Meginnis,  1  Gill  &  J.  (Md.)  474,  19  Am.  Dec.  237;  Starr  v.  Pease, 
8  Conn.  541;  Bingham  v.  Miller,  17  Ohio,  445,  49  Am.  Dec.  471;  State  v. 
Duket,  90  Wis.  272,  63  X.  W.  83,  31  L.  R.  A.  515,  48  Am.  St.  Rep.  928. 

33  MAYNARD  v.  HILL,  125  U.  S.  190,  8  Sup.  Ct.  723,  31  L.  Ed.  654,  Cooley 
Cas.  Persons  and  Domestic  Relations,  1. 

as  Bryson  v.  Campbell,  12  Mo.  498 ;  Jones  v.  Jones,  12  Pa.  351,  51  Am. 
Dec.  612;  In  re  Christiansen,  17  Utah,  412,  53  Pac.  1003,  41  L.  R.  A.  504, 
70  Am.  St  Rep.  794. 

se  Wiukles  v.  Powell,  173  Ala.  46,  55  South.  536. 


PART  II 

PARENT  AND  CHILD 

CHAPTER  VIII 
LEGITIMACY,   ILLEGITIMACY,  AND  ADOPTION 

112-113.    Legitimacy  of  Children. 

114.  Status   of   Illegitimate   Children. 

115.  Adoption  of  Children. 

Persons  occupying  the  relation  of  parent  and  child  have  certain 
rights,  and  are  subject  to  certain  duties  and  obligations,  which  arise 
from  the  legal  status  established  by  that  relation.  Strictly  speak- 
ing, the  status  exists  only  between  the  parent  and  his  legitimate 
children  and  his  children  by  adoption.  But  in  some  degree  these 
rights,  duties,  and  obligations  may  arise  where  one  person  has  as- 
sumed to  stand  in  loco  parentis  to  another,  without  legal  adoption. 
Before  explaining  these  rights,  duties,  and  obligations,  it  is  neces- 
sary to  show  what  constitutes  legitimacy,  how  the  relation  of  par- 
ent and  child  may  arise  through  adoption,  and  how  the  relation  in 
loco  parentis  may  arise.  In  this  chapter  will  also  be  considered  the 
status  of  parent  and  illegitimate  child,  and  the  rights  and  duties 
which  arise  from  that  relation. 

LEGITIMACY  OF  CHILDREN 

112.  A  child  is  legitimate  at  common  law  when  it  was  born  or  be- 

gotten during  the  lawful  wedlock  of  its  parents,  and  very 
generally,  by  statute  in  this  country,  when  its  parents  mar- 
ry subsequent  to  its  birth. 

113.  There  is  a  strong  presumption  that  the  child  of  a  married  wo- 

man is  legitimate;  but  this  is  a  presumption  of  fact,  and 
may  be  rebutted  by  clear  and  convincing  evidence  that  her 
husband  is  not  its  father.  •* 

Legitimacy  and  Illegitimacy 

"A  legitimate  child,"  says  Blackstone,  "is  he  that  is  born  in  lawful 
wedlock,  or  within  a  competent  time  afterwards.  'Pater  est  quern 

(293) 


294  LEGITIMACY,   ILLEGITIMACY,  AND  ADOPTION  (Ch.  8 

nuptiae  demonstrant,'  is  the  rule  of  the  civil  law ;  and  this  holds  with 
the  civilians,  whether  the  nuptials  happen  before  or  after  the  birth 
of  the  child.  With  us  in  England  the  rule  is  narrowed,  for  the 
nuptials  must  be  precedent  to  the  birth."  *  A  child,  to  be  legiti- 
mate, need  not  necessarily  have  been  begotten  during  wedlock.  It 
is  sufficient  if  he  was  born  after,  though  begotten  before,  marriage.2 
In  Rex  v.  Luffe,8  Lord  Ellenborough  said  that,  "with  respect  to  the 
case  where  the  parents  have  married  so  recently  before  the  birth 
of  the  child  that  it  could  not  have  been  begotten  in  wedlock,  it 
stands  upon  its  own  peculiar  ground.  The  marriage  of  the  parties 
is  the  criterion  adopted  by  the  law,  in  cases  of  antenuptial  genera- 
tion, for  ascertaining  the  actual  parentage  of  the  child.  For  this 
purpose  it  will  not  examine  when  the  gestation  began,  looking 
only  to  the  recognition  of  it  by  the  husband  in  the  subsequent  act 
of  marriage."  "A  bastard,  by  our  English  laws,"  says  Blackstone, 
"is  one  that  is  not  only  begotten,  but  born,  out  of  lawful  matrimony. 
The  civil  and  canon  laws  do  not  allow  a  child  to  remain  a  bastard 
if  the  parents  afterwards  intermarry;  and  herein  they  "differ  most 
materially  from  our  law ;  which,  though  not  so  strict  as  to  require 
that  the  child  shall  be  begotten,  yet  makes  it  an  indispensable  con- 
dition, to  make  it  legitimate,  that  it  shall  be  born  after  lawful  wed- 
lock." *  Of  course,  all  children  born  so  long  after  the  death  of  the 
husband  that,  by  the  usual  course  of  gestation,  they  could  not  pos- 
sibly have  been  begotten  by  him,  are  illegitimate ;  and,  generally, 
all  children  are  illegitimate  if  it  is  clearly  shown  by  the  circum- 
stances that  the  husband  could  not  have  been  or  is  not  their  father. 
At  common  law,  if  a  marriage  is  void,  the  children  of  such  a  mar- 

1 1  Bl.  Comm.  446. 

2  Rex  v.  Luffe,  8  East,  198 ;  Stegall  v.  Stegall,  2  Brock.  256,  Fed.  Cas.  No. 
13,351;  Dennison  v.  Page,  29  Pa.  420,  72  Am.  Dec.  644;  Bowles  v.  Bingham,  2 
Munf.  (Va.)  442,  5  Am.  Dec.  497;  Id.,  3  Munf.  (Va.)  599;  State  v.  Wilson, 
32  N.  C.  131;  State  v.  Herman,  35  N.  C.  502.  And  see  Grant  v.  Stimpsou, 
79  Conn.  617,  66  Atl.  166. 

38  East.  198. 

*  1  BL  Conun.  454.  In  countries  governed  by  the  civil  law,  three  classes 
of  children  are  recognized:  Legitimate,  natural,  and  bastards.  Natural  chil- 
dren are  illegitimate  children  both  of  parents  both  of  whom  at  the  tune  of  the 
child's  birth  had  capacity  to  marry.  Such  children  can  be  acknowledged 
or  legitimated  by  the  parents.  Bastards  are  the  illegitimate  children  of 
parents,  one  or  both  of  whom  were  incapacitated  to  marry ;  i.  e.f  children 
of  adulterous  connection.  This  class  of  children  cannot  be  legitimated.  See 
Civil  Code  Philippine  Islands,  art.  119  et  seq.  The  rule  in  Louisiana  is 
practically  the  same.  Briggs  v.  McLaughliu,  134  La.  133,  63  South.  851. 


§§  112-113)  LEGITIMACY   OF   CHILDREN  295 

riage  are  illegitimate,  though  the  parties  in  marrying  may  have  act- 
ed in  the  most  perfect  good  faith.5  So  it  is,  also,  where  a  marriage 
is  voidable  and  avoided  by  disaffirmance,  or  by  a  decree  of  nullity  in 
the  lifetime  of  the  parties,  so  as  to  render  it  void  ab  initio  on  such 
disaffirmance  or  the  entry  of  such  a  decree.6  These  were  harsh 
rules,  and  in  most  states  they  have  been  greatly  modified  by  statute. 
In  some  states  the  statute  is  very  broad.  In  Wisconsin,  for  in- 
stance, the  statute  declares  that  "the  issue  of  all  marriages  declared 
null  in  law  shall,  nevertheless,  be  legitimate."  Such  a  statute,  said 
the  Wisconsin  court,  means  "that  a  child  born  within  the  wedlock 
of  a  regular  marriage,  which  is  null  in  law,  shall,  nevertheless,  be 
the  legitimate  child  and  heir  of  each  and  both  parents,  so  far  as  the 
question  of  legitimacy  is  concerned.  In  other  words,  all  such  chil- 
dren are  legitimate  to  all  intents  and  purposes.  It  is  a  very  just 
and  humane  provision,  and  serves  to  mitigate  somewhat  the  sever- 
ity of  the  old  law,  which  visited  upon  the  children  the  sins  of  their 
parents."  In  the  case  from  which  we  have  quoted,  therefore,  it  was 
held  that  a  child  born  within  the  wedlock  of  a  regular  marriage, 
which  is  void  in  law  because  the  woman  is  already  married,  is, 
nevertheless,  the  legitimate  child  and  heir  of  both  parents.7 

Presumption  of  Legitimacy — Evidence 

The  child  of  a  married  woman  is  presumed  to  be  legitimate,  in 
the  absence  of  evidence  that  the  husband  is  not  its  father.8  This 

6  Ante,  pp.   32,  5&  6  Ante,  p.  58. 

7  Watts  v.  Owens,  62  Wis.  512,  22  N.  W.  720.     And  see  Lincecum  v.  Lin- 
ceeuni,  3  Mo.  441;   Dyer  v.  Brannock,  66  Mo.  391,  27  Am.  Rep.  359;    Green  v. 
Green,  126  Mo.  17,  28  S.  W.  752,  1008 ;    Evatt  v.  Miller,  114  Ark.  84,  169 
S.  W.  817,  L.  R.  A.  1916C,  759;    kelson  v.  Jones,  245  Mo.  579,  151  S.  W.  SO; 
Glass  v.  Glass,  114  Mass.  563;    Inhabitants  of  Hiram  v.  Pierce,  45  Me.  367, 
71  Am.  Dec.  555;    Earle  v.  Dawes,  3  Md.  Ch.  230;    Hartwell  v.  Jackson,  7 
Tex.  576 ;   Graham  v.  Bennet,  2  Cal.  503 ;   Heckert  v.  Hile's  Adm'r,  90  Va.  390, 
18  S.  E.  841.    But  see  Baylis  v.  Baylis,  207  N.  Y.  446,  101  N.  E.  176,  affirming 
146  App.  Div.  517,  131  N.  Y.  Supp.  671;    Green  v.  Kelly,  228  Mass.  602,  118 
N.  E.  235. 

s  Wallace  v.  Wallace,  137  Iowa,  37,  114  N.  W.  527,  14  L.  R,  A.  (N.  S.)  544, 
126  Am.  St.  Rep.  253,  15  Ann.  Gas.  761;  Ex  parte  Madalina,  174  Cal.  693, 
164  Pac.  348,  1  A.  L.  R.  1629;  Sims  v.  Birden,  197  Ala.  690,  73  South.  379, 
744;  Lewis  v.  Sizemore,  78  S.  W.  122,  25  Ky.  Law  Rep.  1354;  Grant  v. 
Stimpson,  79  Conn.  617,  66  Atl.  166 ;  Illinois  Land  &  Loan  Co.  v.  Bonner,  75 
111.  315 ;  Rhyne  v.  Hoffman,  59  N.  C.  335 ;  Buckner's  Adm'r  v.  Buckner,  120 
Ky.  596,  87  S.  W.  776;  Vreeland  v.  Vreeland,  78  N.  J.  Eq.  256,  73  Atl.  336, 
34  L,  R.  A.  (N.  S.)  940 ;  Powell  v.  State,  84  Ohio  St.  165,  95  N.  E.  660,  36  L. 
R.  A.  (N.  S.)  255 ;  State  v.  Shaw,  89  Vt  121,  94  Atl.  434,  L.  R.  A.  1915F,  1087 ; 
Kennedy  v.  State,  117  Ark.  113,  173  S.  W.  842,  L.  R.  A.  1916B,  1052,  Ann.  Cas. 
1917A,  1029;  In  re  Campbell's  Estate,  12  Cal.  App.  707,  108  Pac.  669,  676; 


296  LEGITIMACY,   ILLEGITIMACY,  AND  ADOPTION  (Ch.  8 

presumption  is  very  strong,  and  will  not,  as  a  rule,9  be  rebutted  by 
anything  less  than  clear  and  convincing  proof  that  sexual  inter- 
course did  not  take  place  between  the  father  and  mother  at  any 
time  when,  in  the  course  of  nature,  the  husband  might  have  been  the 
father  of  the  child,  or  that  the  father  and  mother  were  not  legally 
married.10  This  presumption  is  one  of  fact,  and  not  of  law,  and 
may  always  be  rebutted  by  showing  that,  in  fact,  the  husband  could 
not  have  been  the  father.11  The  presumption  is  clearly  rebutted, 

In  re  Henry's  Estate,  167  Iowa,  557,  149  N.  W.  605 ;  Wallace  v.  Wallace,  73 
X.  J.  Eq.  403,  67  Atl.  612 ;  Timraann  v.  Timmann  (Sup.)  142  N.  T.  Supp.  298 ; 
Ewell  v.  Ewell,  163  N.  C.  233,  79  S.  E.  509,  Ann.  Gas.  1915B,  373 ;  Cave  v. 
Cave,  101  S.  C.  40,  85  S.  E.  244.  Evidence  that  plaintiff's  mother  was  legally 
married  to  a  man,  and  that  there  was  opportunity  for  procreation  within 
the  period  of  gestation,  raises  a  conclusive  presumption  that  plaintiff  is  his 
legitimate  son.  Vanover  v.  Steele,  173  Ky.  114,  819,  190  S.  W.  667.  While 
the  presumption  is  not  overcome  by  proof  of  an  antenuptial  conception  it  is 
weakened.  Jackson  v.  Thornton,  133  Tenn.  36,  179  S.  W.  384. 

»  See  post,  p.  298,  as  to  rebuttal  of  presumption  of  legitimacy,  even  where 
intercourse  by  the  husband  is  shown  to  have  taken  place. 

10  Head  v.  Head,  1  Sim.  &  S.  150;  Banbury  Peerage  Case,  Id.  153;  Pend- 
rell  v.  Pendrell,  2  Strange,  925 ;  Hargrave  v.  Hargrave,  9  Beav.  552 ;  Bury  v. 
Phillpot,  2  Mylne  &  K.  349;  Plowes  v.  Bossey,  31  Law  J.  Ch.  681;  In  re 
Kelly's  Estate,  46  Misc.  Rep.  541,  95  N.  Y.  Supp.  57;  Wallace  v.  Wallace,  73 
N.  J.  Eq.  403,  67  Atl.  612;  Orthwein  v.  Thomas,  127  111.  554,  21  N.  E.  430, 
4  L.  R.  A.  434,  11  Am.  St.  Rep.  159 ;  Hemmenway  v.  Towner,  1  Allen  (Mass.) 
209;  Phillips  v.  Allen,  2  Allen  (Mass.)  453;  Strode  v.  Magowan's  Heirs, 
2  Bush  (Ky.)  627 :  Wright  v.  Hicks,  15  Ga.  160,  60  Am.  Dec.  687 ;  Watts  v. 
Owens,  62  Wis.  512,  22  N.  W.  720;  Egbert  v.  Greenwalt,  44  Mich.  245,  6 
N.  W.  654,  38  Am.  Rep.  260;  Illinois  Land  &  Loan  Co.  v.  Bonaer,  T5  111. 
315;  Patterson  v.  Gaines,  6  How.  550,  12  L.  Ed.  553;  Cross  v.  Cross,  3 
Paige  (N.  Y.)  339,  23  Am.  Dec.  778;  Mayer  v.  Davis,  122  App.  Div.  922,  106 
N.  Y.  Supp.  1041;  Fox  v.  Burke,  31  Minn.  319,  17  N.  W.  861;  Kleinert  v. 
Ehlers,  38  Pa.  439 ;  SCANLON  v.  WALSHE,  81  Md.  118,  31  Atl.  498,  48  Am.  St. 
Rep.  488,  Cooley  Cas.  Persons  and  Domestic  Relations,  157;  In  re  Pickens* 
Estate,  163  Pa.  14,  29  Atl.  S75,  25  L.  R.  A.  477.  In  Strode  v.  Magowan's 
Heirs,  supra,  it  is  said:  "The  law  presumes  that  every  child  in  a  Christian 
country  is  prima  face  the  offspring  of  a  lawful,  rather  than  a  meretricious 
union  of  the  parents,  and  that,  consequently,  the  mother,  either  by  actual 
marriage,  or  by  cohabitation  and  recognition,  was  the  lawful  wife  of  the 
father;  and,  in  the  absence  of  any  negative  evidence,  no  supplemental  proof 
of  legal  marriage  will  be  necessary  to  legitimate  the  offspring.  Mere  rumor 
is  insufficient  to  bastardize  issue,  or  require  positive  proof  of  actual  marriage. 
If  the  presumption  be  false,  repellant  facts  may  be  generally  established; 
and,  if  no  such  facts  can  be  clearly  proved,  the  presumption  from  mere  filia- 
tion should  stand." 

nBuuel  v.  O'Day  (C.  C.)  125  Fed.  303;  In  re  Biersack,  961  Misc.  Rep. 
161,  159  N.  Y.  Supp.  519;  Craig  v.  Shea,  102  Neb.  575,  168  N.  W.  135;  West 
v.  Redmond,  171  N.  C.  742,  88  S.  E.  341;  People  v.  Woodson,  29  Cal.  App. 
531,  156  Pac.  378 ;  Harkrader  v.  Reed,  5  Alaska,  668 ;  Flint  v.  Pierce  (Sup.) 
1GG  N.  Y.  Supp.  1030;  State  v.  Shaw,  89  VL  121,  94  Atl.  434,  L.  R.  A,  1915F, 


§§  112-113)  LEGITIMACY   OF  CHILDREN  297 

for  instance,  if  it  is  shown  that  the  husband  was  physically  incapa- 
ble of  sexual  intercourse,  so  that  he  could  not  have  begotten  the 
child; 12  or  that  he  was  beyond  the  seas,  or,  though  not  beyond  the 
seas,  that  he  was  away  from  his  wife,  so  that  he  could  not  have 
had  intercourse  with  her  during  the  time  when,  in  the  course  of 
nature,  the  child  must  have  been  begotten.13 

If  access  by  the  husband  is  shown,  there  is  a  very  strong  pre- 
sumption of  intercourse ;  and  if  there  was  intercourse  at  such  a  time 
that  the.child  could,  in  the  course  of  nature,  have  been  begotten  by 
him,  the  presumption  is  almost  conclusive  that  he  is  the  father.14 
"The  modern  rule,  which*  is  marked  out  by  its  good  sense,  is  that, 
to  bastardize  the  issue  of  a  married  woman,  it  must  be  shown  be- 
yond all  reasonable  doubt  that  there  was  no  such  access  as  could 
have  enabled  the  husband  to  be  the  father  of  the  child.  The  rules 
of  law,  as  laid  down  by  the  judges  on  the  questions  propounded  to 
them  by  the  house  of  lords,  in  the  Banbury  Peerage  Case,15  are  sub- 
stantially these :  Sexual  intercourse  is  to  be  presumed  where  per- 
sonal access  is  not  disproved,  unless  such  presumption  is  rebutted 
by  satisfactory  evidence  to  the  contrary;  and,  where  sexual  inter- 
course is  presumed  or  proved,  the  husband  must  be  taken  to  be  the 

1087;  Kennedy  v.  State,  117  Ark.  113,  173  S.  W.  842,  L,.  R,  A.  1916B,  1052, 
Ann.  Gas.  1917A,  1029;  Wallace  v.  Wiallace,  73  N.  J.  Eq.  403,  67  Atl.  612; 
Ewell  v.  Ewell,  163  N.  C.  233,  79  S.  E.  509,  Ann.  Cas.  1915B,  373;  Powell 
v.  State,  84  Ohio  St.  165,  95  N.  E,  660,  36  L.  R.  A.  (N.  S.)  255.  But  see  People 
v.  Case,  171  Mich.  282,  137  N.  W.  55. 

12  Banbury  Peerage  Case,  1  Sim.  &  S.  153;  Rer  v.  Luffe,  8  East,  193,  207; 
Hargrave  v.  Hargrave,  9  Beav.  552;  Ewell  v.  Ewell,  163  N.  C.  233,  79  S.  E. 
509,  Ann.  Cas.  1915B,  373;  West  v.  Redmond,  171  N.  C.  742,  88  S.  E.  341; 
People  v.  Woodson,  29  Cal.  App.  531,  156  Pac.  378. 

is  Banbury  Peerage  Case,  1  Sim.  &  S.  153;  Head  v.  Head,  Id.  150;  Hark- 
rader  v.  Reed,  5  Alaska,  668 ;  Bosvile  v.  Attorney  General,  12  Prob.  Div.  177. 
In  the  last  case  it  was  in  evidence  that  the  usual  period  of  gestation  is  270 
to  275  days,  and  that  the  child  was  born  276  or  277  days  after  the  last 
opportunity  for  intercourse  between  the  husband  and  wife.  There  was  also 
evidence  that  it  might  have  been  the  child  of  another.  The  jury  found 
against  legitimacy,  and  the  court  refused  to  set  the  verdict  aside.  This  deci- 
sion illustrates  and  sustains  the  proposition  stated  in  the  text,  but  clearly  it 
goes  too  far,  and  allows  too  slight  evidence  to  rebut  the  presumption  of 
legitimacy;  for  it  is  a  well-known  fact  that  the  period  of  gestation  may  ex- 
tend far  beyond  277  days.  Perhaps  the  evidence  that  another  man  had  in- 
tercourse with  the  wife  may  have  had  controlling  weight. 

i*  Banbury  Peerage  Case,  1  Sim.  &  S.  153;  Head  v.  Head,  Id.  150;  Rex 
v.  Luffe,  8  East,  193;  Cross  v.  Cross,  3  Paige  (N.  Y.)  139,  23  Am.  Dec.  778; 
Wilson  v.  Wilson,  174  Ky.  771,  193  S.  W.  7 ;  In  re  Walker's  Estate,  176  Cal. 
402,  168  Pac.  689. 

is  1  Sim.  &  S.  153. 


298  LEGITIMACY,  ILLEGITIMACY,  AND  ADOPTION  (Ch.  8 

father  of  the  child,  unless  there  was  a  physical  or  natural  impossi- 
bility that  such  intercourse  should  have  produced  such  child."  ** 
Mere  proof  of  the  wife's  adultery  is  not  sufficient  to  rebut  the 
presumption,  in  the  absence  of  any  other  evidence  going  to  show 
that  her  husband  could  not  have  begotten  the  child.  "Although 
actual  adultery  with  other  persons  is  established  at  or  about  the 
commencement  of  the  usual  period  of  gestation,  yet  if  access  by  the 
husband  has  taken  place,  so  that,  by  the  laws  of  nature,  he  may  be 
the  father  of  the  child,  it  must  be  presumed  to  be  his,  and. not  the 
child  of  the  adulterer."  1T 

• 

By  the  early  common  law  of  England,  the  rule  was  that  the  hus- 
band must  be  conclusively  presumed  to  be  the  father  of  his  wife's 
children  born  during  wedlock,  if  he  was  within  the  four  seas  at  any 
time  during  the  period  of  his  wife's  gestation,  and  was  not  physical- 
ly incapable  of  procreation.  To  such  an  absurd  length  was  the  doc- 
trine carried  that  it  was  decided  that  a  child  born  in  England  was 
legitimate,  although  it  clearly  appeared  that  the  husband  resided 
in  Ireland  during  the  whole  time  of  his  wife's  pregnancy,  and  for  a 
long  time  previously,  because  Ireland  was  within  the  king's  domin- 
ion.18 This  absurd  doctrine  was  exploded  by  Lord  Raymond  in 
Pendrell  v.  Pendrell,19  in  1732,  where  he  held  that  the  legal  pre- 
sumption of  access  by  the  husband  might  be  controverted.20  And 
the  rule  now  is  well  settled,  both  in  England  and  in  this  country, 
that  the  presumption  is  in  all  cases  a  presumption  of  fact,  and 
not  a  presumption  of  law,  and  may  always  be  rebutted;  and,  fur- 
ther than  this,  that  it  may  be  rebutted  even  where  access  by  the 
husband  is  shown.21  And  the  presumption  may  be  rebutted,  not 
only  by  showing  physical  incapacity,  as  stated  above,  but  by  any 
other  legitimate  evidence,  including  the  conduct  of  the  parties, 

is  Cross  v.  Gross,  3  Paige  (N.  Y.)  139,  23  Am.  Dec.  778. 

IT  Cross  v.  Cross,  3  Paige  (N.  Y.)  139,  23  Am.  Dec.  778;  Town  of  Canaan 
v.  Avery,  72  N.  H.  591,  58  Atl.  509 ;  Wright  v.  Hicks,  15  Ga.  160,  60  Am.  Dec. 
CS7;  Bury  v.  Phillpot,  2  Mylne  &  K.  349;  Hemmenway  v.  Towner,  1  Allen 
(Mass.)  209;  Foote  v.  State,  65  Tex.  Cr.  R.  368,  144  S.  W.  275,  Ann.  Cas. 
191 6A,  1184.  And  see  State  v.  Shaw,  89  Vt.  121,  94  Atl.  434,  L.  R,  A.  1915F, 
1087. 

is  Wright  v.  Hicks,  12  Ga.  155.  56  Am.  Dec.  451,  where  the  ancient  rule  is 
shown  by  Lumpkin,  J.  And  see  Co.  I.itt.  244a ;  Reg.  v.  Murray,  1  Salk.  122. 

i»  2  Strange,  925. 

20  Wright  v.  Hicks,  12  Ga.  155,  56  Am.  Dec.  451. 

21  Pendrell  v.  Pendrell,  2  Strange,  925;    Wright  v.  Hicks,  12  Ga.  155,  56 
Am.  Dec'.  451;   Id.,  15  Ga.  160,  60  Am.  Dec.  687;    Cross  v.  Cross,  3  Paige  (X 
Y.)  139,  23  Am.  Dec.  778,  aud  cases  hereafter  cited. 


§§  112-113)  LEGITIMACY  OF   CHILDREN  299 

which  clearly  shows  that  there  was  no  intercourse.22  In  Cope  v. 
Cope,23  where  the  husband  and  wife  were  living  separate,  and  the 
wife  in  open  adultery,  the  court  said  that,  "although  the  husband 
and  wife  have  an  opportunity  for  access,  it  would  be  monstrous 
to  suppose  that  under  such  circumstances  he  would  avail  himself 
of  such  opportunity^  The  legitimacy  of  a  child,  therefore,  born  un- 
der such  circumstances,  could  not  be  established."  24  In  Wright 
v.  Hicks,25  it  is  said  by  Lumpkin,  J. :  "The  law  now  is  universally 
understood  to  be  clearly  settled  that,  although  the  birth  of  a  child 
during  wedlock  raises  a  presumption  that  such  child  is  legitimate, 
yet  this  presumption  may  be  rebutted  both  by  direct  and  presump- 
tive evidence.  And,  in  arriving  at  a  conclusion  upon  this  subject, 
the  jury  may  not  only  take  into  their  consideration  proofs  tending 
to  show  the  physical  impossibility  of  the  child  born  in  wedlock 
being  legitimate,  but  they  may  decide  the  question  of  paternity  by 
attending  to  the  relative  situation  of  the  parties,  their  habits  of  life, 
the  evidence  of  conduct  and  of  declarations  connected  with  con- 
duct, and  to  any  induction  which  reason  suggests,  for  determining 
upon  the  probabilities  of  the  case.  Where  the  husband  and  wife 
have  had  the  opportunity  of  sexual  intercourse,  a  very  strong  pre- 
sumption arises  that  it  must  have  taken  place,  and  that  the  child 
in  question  is  the  fruit;  but  it  is  only  a  very  strong  presumption, 
and  no  more.  This  presumption  may  be  rebutted  by  evidence,  and 
it  is  the  duty  of  the  jury  to  weigh  the  evidence  against  the  presump- 
tion, and  to  decide  as,  in  the  exercise  of  their  judgment,  either  may 
appear  to  preponderate." 

Even  where  there  was  intercourse  by  the  husband,  actually  shown 
or  presumed  from  access  in  the  absence  of  evidence  to  the  contrary 
the  presumption  of  legitimacy  may  still  be  rebutted  by  circum- 
stances showing  that  it  was  a  natural  impossibility  that  the  "hus- 
band could  be  the  father  of  such  a  child;  as,  for  instance,  where 
the  wife  and  husband  are  white  persons,  and  an  adulterous  inter- 
course is  shown  to  have  existed  between  the  wife  and  a  negro  at 

22  2  Kent,  Comm.  211 ;    Hargrave  v.  Hargrave,  9  Beav.  552 ;    Plowes  v. 
Bossey,  31  T^aw  J.  Ch.  681 ;    Head  v.  Head,  1  Sim.  &  S.  150 ;    Rex  v.  Luffe, 
8  East,  193,  207 ;   Morris  v.  Davis,  5  Clark  &  F.  163 ;   Aylesf  ord  Peerage  Case, 
11  App.  Cas.  1;    Wright  v.  Hicks,  12  Ga.  155,  56  Am.  Dec.  451;    Id.,  15  Ga. 
160,  60  Am.  Dec.  687 :   Van  Aernam  v.  Van  Aernam,  1  Barb.  Ch.  (N.  T.)  375 ; 
Cannon  v.  Cannon,  7  Humph.  (Tenn.)  410;   Cope  v.  Cope,  1  Moody  &  R.  269. 

23  1  Moody  &  R.  269. 

24  See  McLoud  v.  State,  122  Ga.  393.  50  S.  E.  145. 

25  12  Ga.  155,  56  Am.  Dec.  451;   15  Ga.  160,  60  Am.  Dec.  687. 


300  LEGITIMACY,  ILLEGITIMACY,  AND  ADOPTION  (Ch.  8 

or  about  the  time  when  the  child  must  have  been  begotten,  and 
the  color  and  other  physiological  developments  of  the  child  demon- 
strate its  African  paternity.2* 

Though  the  presumption  of  legitimacy  may  be  overthrown  by 
proof  of  nonaccess,  such  proof  must  be  clear  and  convincing.27 
The  policy  of  the  law  does  not  allow  either  the  husband  or  the 
wife  to  testify  as  to  the  fact  of  access  or  nonaccess,  whether  the 
testimony  relates  to  access  before  or  after  marriage.  "Nonaccess 
cannot  be  proved  by  either  the  husband  or  the  wife,  whether  the 
action  be  civil  or  criminal,  or  whether  the  proceeding  is  one  of 
settlement  or  bastardy,  or  to  recover  property  claimed  as  heir  at 
law."  28  In  Goodright  v.  Moss,29  wheVe  the  question  of  legitimacy 
arose  in  an  action  of  ejectment,  Lord  Mansfield  said:  "As  to  the 
time  of  the  birth,  the  father  and  mother  are  the  most  proper  wit- 
nesses to  prove  it.  But  it  is  a  rule  founded  in  decency,  morality, 
and  policy  that  they  shall  not  be  permitted  to  say  after  marriage 
that  they  have  had  no  connection,  and  therefore  that  the  offspring 
is  spurious." 

Legitimation  by  Subsequent  Mafriage  or  Acknowledgment 

It  will  be  noticed  from  what  has  been  said  that,  according  to  the 
civil  law,  children  born  before  the  marriage  of  their  parents  are 
rendered  legitimate  by  tne  marriage.  The  rule  of  the  common  law 
to  the  contrary  is  still  in  force  in  England,  and  in  some  of  our 
states ; 80  but  in  many  states  statutes  have  been  enacted  providing, 

29  See  Whisterlo's  Case,  cited  in  Cross  v.  Cross,  3  Paige  (N.  Y.)  139,  23  Am. 
Dec.  778 ;  Wright  v.  Hicks,  12  Ga.  155,  56  Am.  Dec.  451 ;  Bullock  v.  Knox, 
96  Ala.  195,  11  South.  339. 

27  Mayer  v.  Davis,  122  App.  Div.  '393,  106  N.  T.  Supp.  1041. 

28  Dennison  v.  Page,  29  Pa.  420,  72  Am.  Dec/  644.    And  see  Rex  v.  Luffe, 
8  East,  198;    Rex  v.  Rook,  1  Wils.  340;    Goodright  v.  Moss,  2  Cowp.  591; 
Parker  v.  Way,  15  N.  H.  45 ;   People  v.  Overseers  of  Poor  of  Town  of  Ontario, 
15  Barb.  (N.  Y.)  286 ;   Mink  v.  State,  CO  Wis.  583,  19  N.  W.  445,  50  Am.  Rep. 
3S6;   People  v.  Case,  171  Mich.  282,  137  N.  W.  55;   Croom  v.  Whitehead,  174 
N.  C.  305,  93  S.  E.  854;   Watts  v.  Owens,  62  Wis,  512,  22  N.  W.  720;    Egbert 
v.  Greenwalt,  44  Mich.  245,  6  N.  W.  654,  38  Am.  Rep.  260.    And  the  rule  also 
applies,  so  as  to  exclude  declarations  of  husband  or  wife,  unless  they  are  ad- 
missible because  connected  with,  and  explanatory  of,  conduct.     Bowles  v. 
Bingham,  2  Munf.  (Va.)  442,  5  Am.  Dec.  497. 

2»2  Cowp.  591. 

so  Eversley,  Dom.  Rel.  526.  It  is  held  in  England  that  a  child  born  before 
marriage,  though  made  legitimate  according  to  the  laws  of  the  country  of 
his  birth,  per  subsequens  matrimonium,  cannot  inherit  land  in  England. 
Birtwhistle  v.  Vardill,  7  Clark  &  F.  895.  This  decision  was  based  on  the 
Statute  of  Merton  (20  Hen.  Ill,  c.  9).  And  see  Smith  v.  Deer's  Adm'rs, 


§§  112-113)  LEGITIMACY  OF  CHILDREN  30i 

in  accordance  with  the  civil  law,  that  the  marriage  of  parents  shall 
render  legitimate,  for  all  purposes,  a  child  born  before  the  mar- 
riage,31 and  in  other  states  that  such  result  will  follow  the  marriage 
if  the  child  is  also  acknowledged  and  taken  into  the  family.82  And 
such  statutes  are  valid.83  But  it  is  held  in  some  states  that  the' 
marriage  will  not  legitimate  the  offspring  of  an  adulterous  inter- 
course before  the  marriage.34  In  a  number  of  states,  also,  by  stat- 


34  Pa.  126,  75  Am.  Dec.  641,  which  arose  under  a  statute  of  Pennsylvania 
similar  to  the  Statute  of  Merton.  The  general  rule  in  this  country,  however, 
is  different.  Miller  v.  Miller,  91  N.  Y.  315,  43  Am.  Rep.  669. 

si  Stim.  Am.  St.  Law,  §  6631;  Olmsted  v.  Olmsted,  190  N.  Y.  458,  83  N.  E. 
569,  122  Am.  St.  Rep.  585;  Summs  v.  Snare  &  Triest  Co.,  166  App.  Div. 
425,  152  N.  Y.  Supp.  29 ;  Harrison  v.  Barker,.  44  Utah,  541,  142  Pac.  716 ; 
In  re  Adams'  Estate,  6  Pa.  Co.  Ct.  R.  591 ;  Clauer's  Appeal,  11  Wkly.  Notes 
Cas.  (Pa.)  427 ;  Miller  v.  Miller,  91  N.  Y,  315*  43  Am.  Rep.  669.  But  a  void  mar- 
riage will  not  legitimate  a  child  born  prior  thereto,  though  the  children  of  such 
marriage  are  legitimate.  Adams  v.  Adams,  154  Mass.  290,  28  N.  E.  260,  13  L. 
R.  A.  275.  And  see  Olmsted  v.  Olmsted,  190  N.  Y.  458,  83  N.  E.  569,  123  Am. 
St.  Rep.  585,  affirmed  in  216  U.  S.  386,  30  Sup.  Ct.  292,  54  L.  Ed.  530,  25  L.  R, 
A.  (N.  S.)  1292.  But  it  has  been  held  in  New  York  that  under  Domestic  Rela- 
tions Law,  §§  7,  24,  and  in  view  of  section  6,  and  Code  Civ.  Proc.  §  1745,  an  il- 
legitimate child  was  legitimized  by  subsequent  marriage  of  its  parents,  and 
its  status  was  not  affected  because  marriage  was  annulled  on  ground  that  fa- 
ther consented  under  duress.  Houle  v.  Houle,  100  Misc.  Rep.  28,  166  N.  Y. 
Supp.  67.  And  it  has  been  held  in  Pennsylvania  that  a  subsequent  marriage, 
to  legitimate  a  child  born  before  marriage,  must  be  followed  by  cohabitation. 
In  re  Sollinger's  Estate,  40  Pa.  Super.  Ct.  3.  These  statutes  are  not  confined 
in  their  operation  to  minor  children.  Wolf  v.  Gall,  32  Cal.  App.  286,  163  Pac. 
346,  350.  The  civil-law  rule  is  followed  in  the  Philippine  Islands.  Cosio  v. 
Antonio,  10  Phil.  Rep.  73. 

32  Inhabitants  of  Monson  v.  Inhabitants  of  Palmer,  8  Allen  (Mass.)  551 ; 
Town  of  Rockingham  v.  Town  of  Mount  Holly,  26  Vt.  653;  McBride  v.  Sul- 
livan, 155  Ala.  166,  45  South.  902 ;  Breidenstein  v.  Bertram,  198  Mo.  328,  95 
S.  W.  828;  Stein's  Adm'r  v.  Stein,  106  S.  W.  860,  32  Ky.  Law  Rep,  664; 
Harrison  v.  Odum,  148  Ga.  489,  96  S.  K.  1038;  Kotzke  v.  Kotzke's  Estate, 
205  Mich.  184,  171  N.  W.  442;  Cain  v.  Gray,  146  Ky.  402,  142  S.  W.  715; 
Haddon  v.  Crawford,  49  Ind.  App.  551,  97  N.  E.  811 ;  Landry  v.  American 
Creosote  Works,  119  La.  231,  43  South.  1016,  11  L.  R.  A.  (N.  S.)  387 ;  Trayer 
v.  Setzer,  72  Neb.  845,  101  N.  W.  989.  See,  also,  Rentie  v.  Rentie  (Okl.) 
172  Pac.  1083.  The  recognition  may  be  by  conduct  as  well  as  by  declara- 
tions. Houghton  v.  Dickinson,  196  Mass.  389,  82  N.  E.  481. 

as  Stim.  Am.  St.  Law,  §  6631.  See  Miller  v.  Miller,  91  N.  Y.  315,  43  Am. 
Rep.  669 ;  Houghton  v.  Dickinson,  196  Mass.  389,  82  N.  E.  481. 

34  Adams  v.  Adams,  154  Mass.  290,  28  N.  E.  260,  13  L.  R.  A.  275 ;  Hall  v. 
Hall,  82  S.  W.  300,  26  Ky.  Law  Rep.  610;  Sams  v.  Sams'  Adm'r,  85  Ky. 
396,  3  S.  W.  593.  But  see,  contra,  Miller  v.  Pennington,  218  111.  220,  75  N. 
E.  919,  1  L.  R.  A.  (N.  S.)  773;  Robinson  v.  Ruprecht,  191  111.  424,  61  N.  E.  631 ; 
Bates  v.  Meade,  174  Ky.  545,  192  S.  W.  666;  Drake  v.  Milton  Hospital  Ass'n, 
266  Mo,  1,  178  S.  W.  462;  Kotzke  v.  Kotzke's  Estate,  205  Mich.  184,  171 


302  LEGITIMACY,  ILLEGITIMACY,  AND  ADOPTION  (Ch.  8 

ute,  the  father  of  an  illegitimate  child,  by  publicly  acknowledging  it 
as  his  own,  receiving  it  as  such  into  his  family,  and  otherwise 
treating  it  as  if  legitimate,  thereby  renders  it  legitimate  for  all 
purposes.88  And  in  Michigan,  by  statute,  if  the  father,  by  writing 
executed,  acknowledged  and  recorded  like  deeds  of  real  estate,  but 
with  the  judge  of  probate,  acknowledged  such  child,  it  is  legitimate 
for  all  purposes.86  There  are  various  other  methods  in  different 
states  by  which  illegitimate  children  may  be  rendered  legitimate.87 
In  a  few  states  the  putative  father  of  a 'bastard  has  a  process  in 
court  by  which  he  may  legitimate  the  child.88  In  some  of  the  states 
illegitimate  children  who  have  b'een  rendered  legitimate  under 
statutory  provisions  are  called  "legitimated"  children.  Statutes 
allowing  illegitimate  children  to  inherit,  or  otherwise  clothing 
them  with  the  status  and  rights  of  a  legitimate  child,  are  perfectly 
valid,  for  the  Legislature  has  the  right  to  change  the  common  law 
in  this  respect.89  Such  statutes,  being  in  derogation  of  the  com- 
mon law,  should  be  strictly  construed  ;  but  the  courts  cannot  refuse 
to  give  full  effect  to  the  clear  intention  of  the  Legislature,  as  evi- 
denced by  the  language  of  the  statute.*0 

The  courts  are  not  in  agreement  as  to  what  constitutes  a  suffi- 
cient acknowledgment  of  the  child  to  legitimate  it.  In  a  few 
instances  it  has  been  held  that  the  acknowledgment  must  be  by 
an  instrument  executed  for  the  express  purpose,41  but  the  better 
rule  seems  to  be  that  the  writing  need  not  be  made  for  the  express 

N.  W.  442;  Ives  v.  McNicoll,  59  Ohio  St.  402,  53  N.  B.  60,  43  L.  B.  A.  772, 
69  Am.  St.  Rep.  780. 

so  stim.  Am.  St.  Law,  §  6632.  See  Blythe  v.  Ayres,  96  Gal.  532,  31  Pac. 
915,  19  L.  R.  A.  40;  Id.,  102  Cal.  254,  36  Pac.  522;  In  re  Gird's  Estate, 
157  Cal.  534,  108  Pac.  499,  137  Am.  St.  Rep.  131;  Harrison  v.  Barker,  44 
Utah,  541,  142  Pac.  716. 

se  How.  Ann.  St.  §  5775a. 

87  AS  by  notarial  act  in  Louisiana.    Davenport  v.  Davenport,  116  La.  1009, 
41  South.  240,  114  Am.  St.  Rep.  575;    Succession  of  Davis,  126  La.  178,  52 
South.  266.     In  some  instances  legitimation  has  been   effected  by   special 
act  of  the  Legislature.    Lee  v.  Shankle,  51  N.  C.  313.    See,  also,  Rohwer  v. 
District  Court  of  First  Judicial  District,  41  Utah,  279,  125  Pac.  671,  con- 
struing the  Utah  statute  relating  to  the  legitimation  of  children  of  Mormon 
polygamous  marriages. 

88  Such  statutes  exist  in  Georgia,  Mississippi,  North  Carolina,  and  Ten- 
nessee. 

s »  Cope  v.  Cope,  137  U.  S.  682,  11  Sup.  Ct.  222,  34  L.  Ed.  832;  Miller  v. 
Miller,  91  N.  Y.  315,  43  Am.  Rep.  669. 

«>  Cope  v.  Cope,  137  U.  S.  682,  11  Sup.  Ct.  222,  34  L.  Ed.  832. 
«i  Hunt  v.  Hunt,  37  Me.  333;   Childress  v.  Cutter,  16  Mo.  24. 

\ 


§§  112-113)  LEGITIMACY  OF   CHILDREN  303 

purpose  of  acknowledging  the  child,  but  that  the  acknowledgment 
is  sufficient  if  made  in  any  written  instrument,  collateral  or  other- 
wise.*2 It  is,  of  course,  necessary  that  paternity  should  be  direct- 
ly, unequivocally,  and  unquestionably  acknowledged.43 

The  writing  must  be  complete  in  itself,  so  far  as  the  acknowl- 
edgment is  concerned,  and  must  not  require  aid  from  extraneous 
evidence  as  to  this  fact.44  If  it  appears  with  reasonable  clearness 
and  certainty  from  the  written  words  that  the  paternity  of  the  child 
is  acknowledged,  the  instrument  is  sufficient,  though  it  is  in- 
formal,45 and  though  the  writing  does  not  recite  that  the  child 
is  illegitimate.48 

Conflict  of  Z,aw.r 

By  the  great  weight  of  authority,  the  legitimacy  of  a  child,  not 
only  for  the  purpose  of  determining  whether  he  can  inherit,  but 
for  all  other  purposes,  is  to  be  determined  by  the  law  of  the  place  x 
where  he  was  born  and  the  parents  were  domiciled.47  A  child, 
therefore,  that  is  legitimate  in  the  place  of  its  birth  is  legitimate 
everywhere.48  On  the  other  hand,  a  child  that  is  illegitimate  in 
the  place  of  its  birth  is  illegitimate  everywhere,  and  is  incapable  of 
inheriting  in  another  state,  though,  if  he  had  been  born  in  the  latter 
state,  he  would  have  been  capable  of  inheriting.49 

Whether  an  illegitimate  child  is  legitimated  by  the  subsequent 

"Pederson  v.  Christofferson,  97  Minn.  491,  106  N.  W.  958  (when  the  in- 
strument was  a  lease) ;  Succession  of  Serres,  136  La.  531,  67  South.  356 
(will) ;  In  re  Rohrer,  22  Wash.  151,  60  Pac.  122,  50  L.  R.  A.  350  (where  the 
father  had  certified  before  a  notary  that  the  plaintiff  in  an  action  for 
seduction  was  his  daughter). 

43  Moore  v.  Flack,  77  Neb.  52,  108  N.  W.  143;    Holloway  v.  McCormick, 
41  Okl.  1,  136  Pac.  1111,  50  L.  R.  A.  (N.  S.)  536. 

44  Holloway  v.  McCormick,  41  Okl.  1,  136  Pac.  1111,  50  L.  R.  A.  (N.  S.) 
536. 

45  In  re  Loyd's  Estate,  170  Cal.  85,  148  Pac.  522 ;    Holloway  v.  McCormick, 
41  Okl.  1,  136  Pac.  1111,  50  L.  R.  A.  (N.  S.)  536;    Richmond  v.  Taylor,  151 
Wis.  633,  139  N.  W.  435. 

4s  In  re  Gregory,  13  Misc.  Rep.  363,  35  N.  Y.  Supp.  105;  In  re  Loyd,  170 
Cal.  85,  148  Pac.  522 ;  Blythe  v.  Ayres,  96  Cal.  532,  31  Pac.  915,  19  L.  R.  A. 
40.  The  person  making  the  acknowledgment  must  be  the  real  father  of  the 
child.  In  re  Reid's  Estate,  130  Minn.  256,  153  N.  W.  324. 

47  Story,  Confl.  Law,  §  87  et  seq.;    Smith  v.  Kelly's  Heirs,  23  Miss.  167,  55 
Am.  Dec.  87;    Miller  v.  Miller,  91  N.  Y.  315,  43  Am.  Rep.  669;    Shedden 
v.  Patrick,  5  Paton,  194;    Ross  v.  Ross,  129  Mass.  243,  37  Am.  Rep.  321; 
Green  v.  Kelley,  228  Mass.  602,  118  N.  E.  235;    Holmes  v.  Adams,  110  Me. 
167,  85  Atl.  492. 

48  Green  v.  Kelley,  228  Mass.  602,  118  N.  E.  235. 

*9  Smith  v.  Kelly's  Heirs,  23  Miss.  167,  55  Am.  Dec,  87. 


304  LEGITIMACY,  ILLEGITIMACY,  AND  ADOPTION  (Ch.  8 

marriage  of  its  parents,  or  by  acknowledgment  or  otherwise,  is 
determined  by  the  law  of  the  domicile  of  the  father  at  the  time  of 
the  attempted  legitimation.60  If  an  illegitimate  child  has,  by  the 
subsequent  marriage  of  his  parents,  or  otherwise,  been  rendered 
legitimate,  he  will  be  recognized  as  legitimate  for  all  purposes 
in  another  state,  in  which  there  is  no  such  statute.81  Some  of 
the  cases  are  in  conflict  with  this  doctrine.  Thus,  it  has  been  held 
in  some  jurisdictions  that  a  person  cannot  inherit  land  in  one 
state  or  country  if  he  is  illegitimate  by  the  laws  of  that  state  or 
country,  though  he  may  be  legitimate  by  the  laws  of  the  state  or 
country  in  which  he  was  born,  and  in  which  he  and  his  parents 
are  domiciled.82  These  cases  seem  to  turn,  however,  on  the  Statute 
of  Merton  or  statutes  similar  thereto  in  effect. 

-ZttERs 

STATUS  OF  ILLEGITIMATE  CHILDREN 

114.  The  natural  relation  between  a  parent  and  his  illegitimate 
children  does  not,  at  common  law,  give  rise  to  those  rights 
and  duties  which  pertain  to  the  legal  status  of  parent  and 
child.  But  to  some  extent  the  law  recognizes  bastards  as 
children.  Thus : 

(a)  The  mother  is  entitled  to  the  custody  and  services  of  her 

illegitimate  child,  as  against  the  father  or  strangers;  but 
the  welfare  of  the  child  may  require  the  court  to  award 
its  custody  to  another. 

(b)  The  child's  domicile  is  determined  by  that  of  its  motheri 

(c)  The  putative  father  is  under  no  legal  obligation  to  support 

his  illegitimate  child,  but  now,  by  statute,  he  may  very 
generally  be  compelled  to  do  so. 

(d)  At  common  law,  a  bastard  cannot  inherit,  and  can  have  no 

heir  except  of  his  own  body;  but  this  rule  has  been  to  a 
great  extent  modified  by  statute. 

coBlythe  v.  Ayres,  96  Cal.  532,  31  Pac.  915,  19  L.  R.  A.  40;  Irving  v. 
Ford,  183  Mass.  448,  67  N.  E.  366,  65  L.  B.  A.  177,  97  Am.  St.  Rep.  447 ;  Mil- 
ler v.  Miller,  91  N.  Y.  315,  43  Am.  Rep.  669;  In  re  Grove,  40  Ch.  Div. 
216 ;  Adams  v.  Adams,  154  Mass.  290,  28  N.  E.  260,  13  L.  R.  A.  275. 

si  Miller  v.  Miller,  91  N.  Y.  315,  43  Am.  Rep.  669;  Finley  v.  Brown,  122 
Tenn.  316,  123  S.  W.  359,  25  L.  R.  A.  (N.  S.)  1285;  Scott  v.  Key,  11  La. 
Ann.  232. 

ozBurtwhistle  v.  Vardill,  6  Bing.  N.  C.  385  (as  to  this  case  see  Ross  v. 
Ross,  129  Mass.  243,  37  Am.  Rep.  321) ;    Smith  v.   Derr's  Adm'rs,  34  Pa.  > 
126,  75  Am.  Dec.  641;    Lingen  v.  Liugen,  45  Ala.  410.     See,  also,  Hall  ? 
Gabbert,  213  I1L  208,  72  N.  E.  806. 


§  114)  STATUS   OF  ILLEGITIMATE   CHILDREN  305 

The  relation  between  a  parent  and  his  illegitimate  offspring 
does  not  give  rise  to  the  rights  and  obligations  arising  from  the 
relation  of  a  parent  and  his  legitimate  child.  At  least,  it  is  so  at 
common  law.63  In  the  absence  of  statutory  provision,  the  com- 
mon law  scarcely  recognizes  the  father  of  a  bastard,  if,  indeed,  it 
recognizes  him  at  all.  The  courts,  however,  for  some  purposes,  do 
recognize  the  blood  relationship  between  a  bastard  and  its  mother.6* 
They  recognize  the  mother's  right  to  the  custody  and  control  of 
it,  and  will  generally  award  her  the  custody  as  against  strangers, 
and  even  as  against  the  father.66  The  mother  can  also  transfer 
her  rights  in  this  respect  to  another.68  The  rights  of  the  mother, 
however,  or  of  one  to  whom  she  has  transferred  the  custody  of 
the  child,  are  not  absolute  and  beyond  control.  As  in  the  case  of 
a  legitimate  child,  so  in  the  case  of  a  bastard,  the  welfare  of  the 
child  will  be  the  controlling  consideration,  where  a  question  arises 
as  to  its  custody.67  The  rules  applicable  in  the  case  of  legitimate 
children  68  are  equally  applicable  here.  On  the  death  of  the  mother 
of  a  bastard,  it  becomes  an  orphan  in  law,  even  though  its  father 
is  living,  and  claims  its  custody.58 

The  domicile  of  a  bastard  is  determined  by  that  of  its  mother.6* 

63  Simmons  v.  Bull,  21  Ala.  501,  56  Am.  'Dec.  257. 

o*  Eaton  v.  Eaton,  88  Conn.  269,  91  Atl.  191;  Moore  v.  Saxton,  90  Conn. 
164,  96  Atl.  960,  Ann.  Gas.  1917C,  534;  Purinton  v.  Jamrock,  195  Mass.  187, 
80  N.  E.  802,  18  L.  R.  A.  (N.  S.)  926. 

SB  Reg.  v.  Nash,  10  Q.  B.  Div.  454;  Rex  v.  New,  20  Times  Law  R.  583; 
Reg.  v.  Barnardo,  24  Q.  B.  Div.  283;  Ex  parte  Knee,  1  Bos.  &  P.  (N.  R.) 
148;  Marshall  v.  Reams,  32  Fla.  499,  14  So.uth.  95,  37  Am.  St.  Rep.  118; 
Aycock  v.  Hampton,  84  Miss.  204,  36  South.  245,  65  L.  R.  A.  689,  105  Am. 
St.  Rep.  424;  Lipsey  v.  Battle,  80  Ark.  287,  97  S.  W.  49;  In  re  Moore,  72 
Misc.  Rep.  644,  132  N.  Y.  Supp.  249 ;  Ex  parte  Bryon,  83  Vt.  108,  74  Atl.  488 ; 
Purinton  v.  Jamrock,  195  Mass.  187,  80  N.  E.  802,  18  L.  R.  A.  (N.  S.)  926; 
Friesner  v.  Symonds,  46  N..  J.  Eq.  521,  20  Atl.  257;  Robalina  v.  Armstrong, 
15  Barb.  (N.  Y.)  247;  Wright  v.  Wright,  2  Mass.  109;  Carpenter  v.  Whit- 
man, 15  Johns.  (N.  Y.)  208;  Com.  v.  Fee,  6  Serg.  &  R.  (Pa.)  255;  Town  of 
Hudson  v.  Hills,  8  N.  H.  417 ;  Lawson  v.  Scott,  1  Yerg.  (Tenn.)  92 ;  Adams 
v.  McKay,  36  Ga.  440;  Pratt  v.  Nitz,  48  Iowa,  33.  But  see  Hesselman  v. 
Haas,  71  N.  J.  Eq.  689,  64  Atl.  165,  holding  that  as  against  any  person  ex- 
cept the  putative  father,  the  motner  of  a  natural  child  has  the  natural  right 
to  its  custody. 

»e  Marshall  v.  Reams,  32  Fla.  499,  14  South.  95,  37  Am.  St.  Rep.  118. 

6  7  Reg.  v.  Nash,  10  Q.  B.  Div.  454;  Marshall  v.  Reams,  32  Fla.  499,  14 
South.  95,  37  Am.  St.  Rep.  118 ;  In  re  Lloyd,  3  Man.  &  G.  547. 

6  s  Post,  p.  343. 

59  Friesner  v.  Symonds,  46  N.  J.  Eq.  521,  20  Atl.  257. 

«o2  Kent,  Comm.  214;  Dicey,  Dom.  5;  Blythe  v.  Ayres,  96  Cal.  532,  31 
TIFF.P.&  D.REL.(3o  ED.)— 20 


306  LEGITIMACY,  ILLEGITIMACY,  AND  ADOPTION  (Ch.  8 

In  the  absence  of  proof  of  her  domicile,  the  child  will  be  presumed 
to  be  settled  in  the  place  of  its  birth.61 

At  common  law  the  father  is  under  no  legal  obligation  to  main- 
tain his  illegitimate  children,  for  as  has  been  seen,  in  the  eye  of  the 
common  law,  an  illegitimate  child  has  no  father,  but  is  regarded 
as  nullius  filius.82  But  the  father  is  liable  on  an  express  promise 
to  pay  for  support  and  maintenance  to  be  furnished  to  his  illegiti- 
mate children,  and  on  an  implied  contract  to  pay  therefor  where 
he  has  adopted  the  child  as  his  own,  and  acquiesced  in  any  par- 
ticular disposition  of  it.68  It  has  been  held  that  the  mother,  even 
in  the  absence  of  a  statute,  is  bound  to  maintain  her  illegitimate 
child,64  and  she  is  in  consequence  thereof  entitled  to  the  child's 


services.65 

In  England,  and  in  most  of  our  states,  statutes  have  been  enact- 

Pac.  915,  19  L.  R.  A.  40;  Inhabitants  of  Monson  v.  Inhabitants  of  Palmer, 
8  Alien  (Mass.)  551. 

«i  Guardians  of  Headington  Union  v.  Guardians  of  Ipswich  Union,  25  Q. 
B.  Div.  143. 

ea  Moncrief  v.  Ely,  19  Wend.  (N.  Y.)  405;  Todd  v.  Weber,  95  N.  Y.  181,  47 
Am.  Rep.  20;  Bissell  v.  Myton,  160  App.  Div.  268,  145  N.  Y.  Supp.  591,  af- 
firmed 214  N.  Y.  672,  108  N.  E.  1089;  Simmons  v.  Bull,  21  Ala.  501,  56 
Am.  Dec.  257;  Glidden  v.  Nelson,  15  111.  App.  297;  Nine  v.  Starr,  8  Or.  49; 
Wiggins  v.  Keizer,  6  Ind.  252;  Duncan  v.  Pope,  47  Ga.  445.  But  see  Best 
v.  House  (Ky.)  113  S.  W.  849;  Sanders  v.  Sanders,  167  N.  C.  319,  83  S.  E. 
490;  State  v.  Rucker,  86  S.  C.  66,  68  S.  E.  133,  holding  that  there  is  a. 
natural  and  moral  duty  on  the  father  to  support  his  illegitimate  child. 

«s Todd  v.  Weber,  95  N.  Y.  181,  47  Am.  Rep.  20,  and  cases  cited  therein; 
Knowlman  v.  Bluett,  L.  R.  9  Exch.  307;  Hicks  v.  Gregory,  19  Law  J.  C.  P. 
81 ;  Wiggins  v.  Keizer,  6  Ind.  252 1  Franklin  v.  Ford,  13  Ga.  App.  469,  79  S. 
E.  366 ;  Burton  v.  Belvin,  142  N.  C.  151,  55  S.  E.  71 ;  Moncrief  v.  Ely,  19 
Wend.  (N.  Y.)  405;  Birdsall  v.  Edgerton,  25  Wend.  (N.  Y.)  619;  Hesketh  v. 
Gowing,  5  Esp.  131.  But  not,  it  seems,  where  the  woman  was  married  to 
another  at  the  time  the  child  was  begotten.  Vetten  v.  Wallace,  39  111.  App. 
390.  An  agreement  by  a  man  to  pay  for  the  maintenance  of  children  which 
may  result  from  future  illicit  cohabitation  is  void,  because  of  its  immoral 
tendency.  Clark,  Cont.  439;  Crook  *v.  Hill,  3  Ch.  Div.  773.  But  such  an 
agreement  as  to  children  already  born,  or  as  to  a  child  in  ventre  sa  mere,  is 
valid;  the  illicit  intercourse  in  such  case  being  past.  Clark,  Cont.  439; 
Crook  v.  Hill,  3  Ch.  Div.  773.  The  moral  obligation  of  a  father  to  support 
his  illegitimate  children  is  a  sufficient  consideration  for  his  bond  so  to  do. 
Trayer  v.  Setzer,  72  Neb.  845,  101  N.  W.  989. 

ei  Wright  v.  Wright,  2  Mass.  109;  Friesner  v.  Symonds,  46  N.  J.  Eq.  521, 
20  Atl.  257,  259;  Nine  v.  Starr,  8  Or.  49;  Carpenter  v.  Whitman,  15  Johns. 
(N.  Y.)  208;  People  v.^Landt,  2  Johns.  (N.  Y.)  375;  Com.  v.  Fee,  6  Serg.  & 
R.  (Pa.)  255;  Town  of  Hudson  v.  Hills,  8  N.  H.  417.  And  see  People  v. 
Chamberlain  (Sup.)  106  N.  Y.  Supp.  149  (under  statute). 

«5  Illinois  Central  R.  Co.  v.  Sanders,  104  Miss.  257,  61  South.  309,  44  L. 
R.  A.  (A.  S.)  1137. 


§  114)  STATUS   OP   ILLEGITIMATE    CHILDREN  307 

ed  making  the  father  chargeable  with  the  maintenance  of  his 
illegitimate  children,  for  the  purpose  of  relieving  the  parish  or 
county  of  the  expense.  And  in  most  states,  by  statute,  the  mother 
has  a  compulsory  remedy,  generally  known  as  "bastardy  proceed- 
ings," to  Compel  the  father  to  support  the  child.08 

Inheritance  by  and  from  Bastards 

At  common  law  the  rights  of  an  illegitimate  child  were  much 
restricted.  Blackstone  says :  "The  rights  are  very  few,  being  only 
such  as  he  can  acquire;  for  he  can  inherit  nothing,  being  looked 
upon  as  the  son  of  nobody,  and  sometimes  called  'filius  nullius,' 
sometimes  'films  populi.'  "  67  At  common  law  he  canaot  inherit 
property  from  any_  one,  for,  while  his  blood  relationship  to  his 
mother  is  recognized  for  certain  purposes,  he  has  no  legal  status  as 
child  and  heir.68  Nor  can  he  have  heirs  except  of  his  own  body.69 
"A  bastard,"  says  Kent,  "being,  in  the  eye  of  the  law,  nullius  films, 
or,  as  the  civil  law,  from  the  difficulty  of  ascertaining  the  father, 
equally  concluded,  patrem  habere  non  intelliguntur,  he  has  no  in- 
heritable blood,  and  is  incapable  of  inheriting  as  heir,  either  to  his 
putative  father,  or  his  mother,  or  to  any  one  else;  nor  can  he  have 
heirs  but  of  his  own  body.  The  rule  of  the  common  law,  so  far  at 
least  as  it  excludes  him  from  inheriting  as  heir  to  his  mother,  is 


e e  St.  18  Eliz.  c.  3;  4  &  5  Win.  IV,  c.  76,  §  72;  Mann  v.  People,  35  I1L 
467;  Maloney  v.  People,  38  111  62;  State  v.  Evans,  19  Ind.  92;  Scantland 
v.  Coin.,  6  J.  J.  Marsh.  (Ky.)  585;  Bailey  v.  Chesley,  10  Gush.  (Mass.)  284; 
Wilbur  v.  Crane,  13  Pick.  (Mass.)  284;  People  v.  Harty,  49  Mich.  490,  13  N. 
W.  829 ;  State  v.  Nichols,  29  Minn.  357,  13  N.  W.  153 ;  State  v.  Mushied,  12 
Wis.  561 ;  Van  Tassel  v.  State,  59  \vis.  351,  18  N.  W.  328.  There  is  a  valuable 
note  on  this  subject  covering,  also,  the  procedure,  evidence,  etc.,  under  the 
statutes,  in  56  Am.  Dec.  210-223. 

67  1  Bl.  Comm.  459. 

681  Bl.  Comm.  459;  2  Kent,  Cornm.  213;  Houghton  v.  Dickinson,  196 
Mass.  389,  82  N.  E.  481;  State  v.  McDonald,  59  Or.  520,  117  Pac.  281; 
Hayworth  v.  Williams,  102  Tex.  308,  116  S.  W.  43,  132  Am.  St.  Rep.  879; 
Jackson  v.  Hocke,  171  Ind.  371,  84  N.  E.  830 ;  Berry  v.  Powell,  47  Tex.  Civ. 
App.  599,  105  S.  W.  345;  Hicks  v.  Smith,  94  Ga.  809,  22  S.  E,  153.  The 
civil  law  was  different  as  regards  inheritance  from  the  mother.  Pettus  v. 
Dawson,  82  Tex.  18,  17  S.  W.  714. 

6»  1  Bl.  Comm.  459 ;  2  Kent,  Comm.  213 ;  Cooley  v.  Dewey,  4  Pick.  (Mass.) 
93,  16  Am.  Dec.  326;  Stover  v.  Boswell's  Heir,  3  Dana  (Ky.)  233;  Barwick 
v.  Miller,  4  Desaus.  (S.  C.)  434:  Bent's  Adm'r  v.  St.  Vrain,  30  Mo.  268; 
State  v.  McDonald,  59  Or.  520,  117  Pac.  281 ;  CROAN  v.  PHELPS'  ADM'R,  94 
Ky.  213,  21  S.  W.  874,  23  L.  R.  A.  753,  Cooley  Cas.  Persons  and  Domestic 
Relations,  164. 


308  LEGITIMACY,  ILLEGITIMACY,  AND  ADOPTION  (Ch.  8 

supposed  to  be  founded  partly  in  policy,  to  discourage  illicit  com- 
merce between  the  sexes."  70 

The  harsh  rules  of  the  common  law,  in  so  far  as  they  rendered  a 
bastard  incapable  of  inheriting  as  heir,  and  of  having  heirs  except 
of  his  own  body,  have  been  greatly  modified  by  statute  in  this 
country.71  In  most  states  it  is  now  provided  by  statute  that  bas- 
tards shall  inherit  from  or  through  their  mother  share  and  share 
alike  with  her  legitimate  children.72  "This  relaxation  in  the  laws 
of  so  many  of  the  states,  of  the  severity  of  the  common  law,  rests 
upon  the  principle  that  the  relation  of  parent  and  child,  which  ex- 
ists in  this  unhappy  case  in  all  its  native  and  binding  force,  ought  to 
produce  the  ordinary  legal  consequences  of  that  consanguinity."  7S 
So,  also,  in  most  states,  by  statute,  bastards  may  not  only  have 
heirs  of  their  own  body,  as  at  common  law,  but  they  may  transmit 
to  their  mother  and  her  kin,  as  if  legitimate.74  In  some  states,  bas- 


70  2  Kent,  Comm.  213. 

71  The  right  of  inheritance  of  illegitimate  children  Is  purely  statutory, 
and  unless  given  by  statute  no  such  right  exists.     Mansfield  v.  Neff,   43 
Utah,  258,  134  Pac.  1160.    Illegitimate  children  are  not  favored  in  the  law, 
and  have  only  such  property  rights  as  are  expressly  granted  by  statute. 
Bell  v.  Terry  &  Tench  Co.,  177  App.  Div.  123,  163  N.  Y.  Supp.  733.     The 
Legislature  can  remove  the  disabilities  of  illegitimate  children  as  the  right 
of  inheritance  is  a  creature  of  the  law  and  can  be  changed  by  the  Legislature 
at  any  time  and  to  any  extent.    Wolf  v.  Gull,  32  Cal.  App.  286,  163  Pac.  346, 
350. 

72  Stim.  Am.   St.  Law,  §  3151.     See  Alexander's  Adm'r  v.  Alexander,  31 
Ala.  241 ;   Neil's  Appeal,  92  Pa.  193 ;    Stover  v.  Boswell's  Heir,  3  Dana  (Ky.) 
233 ;  Jackson  v.  Collins,  16  B.  Mon.  (Ky.)  214 ;   McGuire  v.  Brown,  41  Iowa, 
650;    Lee  v.  Frater  (Tex.  Civ.  App.)  185  S.  W.  325;    Hahn  v.  Hammerstein, 
272  Mo.  248,  198  S.  W.     833;    Moore  v.  Saxton,  90  Conn.  164,  96  Atl.  960, 
Ann.  Gas.  1917C,  534;    Eaton  v.  Eaton,  88  Conn.  269,  91  Atl.  191;    Smith  v. 
Garber,  286  111.  67,  121  N.  E.  173. 

782  Kent,  Comm.  213. 

7*  Stim.  Am.  St.  Law,  §  3154.  See  Garland  v.  Harrison,  8  Leigh  (Va.) 
368 ;  Neil's  Appeal,  92  Pa.  193 ;  Reese  v.  Starner,  106  Md.  50,  66  Atl.  443 ; 
Osborne  v.  McDonald  (C.  C.)  159  Fed.  791,  affirmed  167  Fed.  894,  03  C.  C.  A. 
294;  Berry  v.  Powell,  47  Tex.  Civ.  App.  599,  105  S.  W.  345;  Dickinson's 
Appeal,  42  Conn.  491,  19  Am.  Rep.  553;  Ellis  v.  Hatfield,  20  Ind.  101;  No- 
lasco  v.  Lurty,  13  La.  Ann.  100;  Remmington  v.  Lewis,  8  B.  Mon.  (Ky.) 
606;  Blankenship  v.  Ross,  95  Ky.  306,  25  S.  W.  268.  See,  also,  Lewis  v. 
Eutsler,  4  Ohio  St  354.  A  statute  providing  that  "bastards  shall  be  capable 
of  inheriting  and  transmitting  an  inheritance  on  the  part,  of  or  to  the 
mother"  does  not  provide  for  the  transmission  of  a  bastard's  estate  through 
the  mother  and  on  to  her  collateral  kindred.  CROAN  v.  PHELPS'  ADM'R.  94 
Ky.  213,  21  S.  W.  874,  23  L.  R.  A.  753,  Cooley  Gas.  Persons  and  Domestic  Re- 
lations, 164;  McSurley  v.  Venters  (Ky.)  104  S.  W.  365.  See,  also,  Blair  v. 


§  114)  STATUS   OF  ILLEGITIMATE   CHILDREN  309 

tards  may  not  only  inherit  from  their  mother,  but  they  may  repre- 
sent her  so  as  to  inherit  from  her  kin,75  and  in  several  states  the  il- 
legitimate children  of  the  same  mother  may  inherit  from  each  other 
through  their  mother.76  In  other  states  illegitimate  children  can 
inherit  only  from  the  mother.77 

Of  course,  at  common  law  an  illegitimate  child  could  nj^t  inherit 
from  its  father.78  But  such  right  is  given  by  statute  in  many  states, 
if  there  was  proper  acknowledgment  of  the  child  by  the  father.79 
In  some  states,  on  the  failure  of  legitimate  heirs,  an  illegitimate 
child  may  inherit  from  its  father.80 

Adams  (C.  C.)  59  Fed.  243;  University  of  North  Carolina  v.  Markham,  174 
N.  C.  338,  93  S.  E.  845. 

TO  See  Doe  v.  Bates,  6  Blackf.  (Ind.)  533;  Waggoner  v.  Miller,  26  N.  C. 
480;  Berry  v.  Powell,  47  Tex.  Civ.  App.  599,  105  S.  W.  345;  Keech  v.  En- 
riquez,  28  Fla.  597,  10  South.  91;  Barron  v.  Zimmerman,  117  Md.  296,  83 
Atl.  258,  Ann.  Cas.  1914D,  574;  Chambers  v.  Chambers,  249  111.  126,  94 
N.  E.  108.  See,  also,  Tigert  v.  Wells,  134/Tenn.  144,  183  S.  W.  737.  But  it 
was  held  in  Thigpen  v.  Thigpen,  136  Ga.  541,  71  S.  E.  790,  that  an  illegiti- 
mate is  not,  on  the  death  of  his  mother,  capable  of  inheriting  from  his  ma- 
ternal grandfather. 

76  Curlew  v.  Jones,  146  Ga.  367,  91  S.  E.  115;  Jn  re  Lutz's  Estate,  43  Misc. 
Rep.  230,  88  N.  Y.  Supp.  556;  Berry  v.  Tullis  (Tex.  Civ.  App.)  105  S.  W. 
348;  Yates  v.  Craddock  (Tex.  Civ.  App.)  184  S.  W,  276;  McCline  v.  Ridley, 
134  Term.  164,  183  S.  W.  736. 

1 1  Jackson  v.  Jackson,  78  Ky.  390,  39  Am.  Rep.  246;  McSurley  v.  Ven- 
ters, 104  S.  W.  365,  31  Ky.  Law  Rep.  963;  Overton  v.  Overton,  123  Ky.  311, 
96  S.  W.  469 ;  Reynolds  v.  Hitchcock,  72  N.  H.  340,  56  Atl.  745 ;  Brown  v. 
Kerby,  9  Humph.  (Tenn.)  460.  A  statute  making  bastards  capable  of  inherit- 
ing "on  the  part  of  their  mother"  does  not  enable  a  bastard  to  inherit  from 
collateral  kindred  of  his  mother.  Williams  v.  Kimball,  35  Fla.  49,  16  South. 
783,  26  L.  R.  A.  746,  48  Am.  St.  Rep.  238 ;  Holmes  v.  Adams,  110  Me.  167,  85 
Atl.  492.  But  see  Berry  v.  Powell,  47  Tex.  Civ.  App.  599,  105  S.  W.  345. 

78Houghton  v.  Dickinson,  196  Mass.  389,  82  N.  E.  481;  Pair  v.  Pair,  147 
Ga.  754,  95  S.  E.  295. 

7»  See  the  statutes  of  the  various  states.  See,  also,  McKellar  v.  Harkins, 
183  Iowa,  1030,  166  N.  W.  1061 ;  Wolf  v.  Gall,  32  Cal.  App.  286,  163  Pac.  350 ; 
Rentie  v.  Rentie  (Okl.)  172  Pac.  1083;  Pederson  v.  Christofferson,  97  Minn. 
491,  106  N.  W.  958;  Moore  v.  Flack,  77  Neb.  52,  108  N.  W.  143.  buch  stat- 
utes are  remedial,  and  should  be  liberally  construed.  Wilson  v.  Bass  (Ind. 
App.)  118  N.  E.  379.  The  right  of  inheritance  may  be  given  by  special  act  of 
the  legislature.  See  Davis  v.  Milford,  85  S.  C.  504,  67  S.  E.  744. 

so  Cox  v.  Rash,  82  Ind.  519 ;  Haddon  v.  Crawford,  49  Ind.  App.  551,  97  N. 
E.  811.  Under  Burns'  Ann.  St.  1914,  §§  870,  871,  an  adopted  child  is  a  "legiti- 
mate child,"  whose  survivorship  of  his  adopting  father  bars  right  of  inherit- 
ance of  illegitimate  children  of  the  father  under  Burns'  Ann.  St.  1914,  § 
3000.  Cooley  v.  Powers,  63  Ind.  App.  59,  113  N.  E.  382. 


310  LEGITIMACY,  ILLEGITIMACY,  AND  ADOPTION  (Ch.  8 


ADOPTION  OF  CHILDREN 

115.  By  statute,  in  most  jurisdictions,  but  not  at  common  law,  a 
person  may  adopt  a  child ;  and  in  such  a  case,  unless  there 
are  statutory  provisions  to  the  contrary,  the  rights,  duties, 
and  obligations  arising  from  the  artificial  relation  will  be 
substantially  the  same  as  those  arising  from  the  natural  re- 
lation of  parent  and  child. 

Adoption  is  the  act  by  which  the  relations  of  paternity  and  af- 
filiation are  recognized  as  legally  existing  between  persons  not  so 
related  by  nature.81  The  legal  adoption  by  one  person  of  the  off- 
spring of  another,  giving  him  the  status  of  a  child  by  adoption,  was 
unknown  to  the  common  law,82  and  in  the  sense  in  which  the  term 
is  used  in  the  United  States  is  not  recognized  in  England.83  It  was 
recognized,  however,  by  the  Roman  law,  and  exists  in  many  coun- 
tries on  the  continent  of  Europe,  which  derive  their  jurisprudence 
from  that  law.  It  was  long  ago  introduced,  from  the  law  of  France 
or  of  Spain,  into  Louisiana  and  Texas,  and  more  recently,  at  various 
times  and  by  different  statutes,  into  most  of  the  other  states.8* 

Since  it  was  unknown  to  the  common  law,  adoption  exists  in  the 
United  States  only  by  virtue  of  statute.88  Though  the  statutes  au- 

8i  In  re  Sessions'  Estate,  70  Mich.  297,  38  N.  W.  249,  14  Am.  St  Rep.  500. 
For  other  definitions,  see  1  Words  and  Phrases,  pp.  206,  207. 

82Albring  v.  Ward,  137  Mich.  352,  100  N.  W.  609;  Morrison  v.  Sessions' 
Estate,  70  Mich.  297,  38  N.  W.  249,  14  Am.  St.  Rep.  500;  In  re  Huyck,  49 
Misc.  Rep.  391,  99  N.  Y.  Supp.  502 ;  In  re  Jobson's  Estate,  164  Cal.  312,  128 
Pac.  938,  43  L.  R.  A.  (N.  S.)  1062 ;  Ex  parte  Livingston,  151  App.  Div.  1,  135 
N.  Y.  Supp.  328;  Hockaday  v.  Lynn,  200  Mo.  456,  98  S.  W.  585,  8  L.  R.  A. 
(N.  S.)  117,  118  Am.  St.  Rep.  672,  9  Ann.  Cas.  775. 

ssEversley,  Law  of  Domestic  Relations  (3d  Ed.  1906)  pt.  2,  c.  2,  p.  514, 
This  authority  says:  "The  law  of  England,  strictly  speaking,  knows  nothing 
of  adoption,  and  does  not  recognize  any  rights,  claims,  or  duties  arising  out 
of  such  a  relation,  except  as  arising  out  of  an  express  or  implied  contract. 
But,  in  so  far  as  the  court  of  chancery  will,  in  the  interests  of  the  children, 
enforce  the  waiver  or  abandonment  of  the  control  of  the  father  (or  mother), 
up  to  that  point  it  might  be  said  to  countenance  the  claim  of  the  adoptive 
parent,  not  on  the  ground  of  any  right,  in  the  latter,  but  of  the  material 
well-being  of  the  infant."  Adoption  is  unknown  in  Scotland.  See.  Kerrigan 
v.  Hall,  [1901]  4  Sess.  Cas.  10. 

84  Ross  v.  Ross,  129  Mass.  243,  37  Am.  Rep.  321.  Adoption  in  Texas,  how- 
ever, gives  the  adopted  person  only  the  status  of  heir  of  the  adopter,  and  does 
not  create  the  relation  of  parent  and  child.  Eckford  v.  Knox,  67  Tex.  205,  2 
S.  W.  372. 

as  Morrison  v.  Sessions'  Estate,  70  Mich.  297,  38  X.  W.  249,  14  Am.  St.  Rep. 


s 


§  115)  ADOPTION   OF   CHILDREN  311 

thorizing  adoption  of  children  are  in  derogation  of  the  common  law, 
and  for  this  reason  are,  in  some  respects  to  be  strictly  construed,88 
so  that,  in  order  that  there  may  be  a  legal  adbption,  there  must  be  a 
substantial  compliance  with  the  terms  of  the  statute,87  yet  the  con- 
struction should  not  be  narrowed  so  closely  as  to  defeat  the  legisla- 
tive intent.88 

Proceedings  to  Adopt 

The  statutes  relating  to  adoption  vary  so  widely  in  the  different 
states,  that  only  the  most  general  statement  of  the  provisions  gov- 
erning adoption  can  be  made.  Whether  the  statute  contains  ex- 
press provisions  as  to  the  age  of  the  person  adopting  another  or 
not  it  is  contemplated  that  the  adopter  shall  be  of  suitable  age  to 
assume  the  parental  relation.89  In  some  states,  if  the  adopter  is 

500;  In  re  Thome's  Will,  155  N.  Y.  140,  49  N.  E.  661;  In  re  Oozza,  163  Cal. 
514,  126  Pac,  161,  Ann.  Gas.  1914A,  214;  Rahn  v.  Hamilton,  144  Ga.  644, 
87  S.  E.  1061;  Killers  v.  Taylor,  108  Md.  148,  69  Atl.  715;  In  re  Sharon's  Es- 
tate, 179  Cal.  447,  177  Pac.  283.  Of  the  states  whose  jurisprudence  is  based 
on  the  common  law,  Massachusetts  seems  to  have  been  the  first  state  to  enact 
statutes  relating  to  adoption.  Ross  v.  Ross,  129  Mass.  243,  37  Am.  Rep.  321. 

se  Furgeson  v.  Jones,  17  Or.  204,  20  Pac.  842,  3  A.  L.  R.  620,  11  Am.  St. 
Rep,  808;  Bresser  v.  Saarman,  112  Iowa,  720,  84  N.  W.  920;  Appeal  of 
Woodward,  81  Conn.  152,  70  Atl.  453;  Purinton  v.  Jamrock,  195  Mass.  187, 
80  N.  E.  802,  18  L.  Rr  A.  (N.  S.)  926 ;  Long  v.  Dufer,  58  Or.  162,  113  Pac.  59. 
The  adoption  statutes  of  Texas  ingrafted  on  the  law  of  the  state  the  provi- 
sions of  the  civil  law,  as  well  as  its  construction  of  the  law.  Harle  v.  Harle 
(Tex.  Civ.  App.)  166  S.  W.  674. 

sTAppeal  of  Woodward,  81  Conn.  152,  70  Atl.  453;  Long  v.  Dufur,  58  Or. 
162,  113  Pac.  59;  People  v.  Wethel,  202  111.  App.  77;  In  re  Sharron's  Estate, 
179  Cal.  447,  177  Pac.  283. 

ss  Ferguson  v.  Herr,  64  Neb.  649,  90  N.  W.  625,  94  N.  W.  542 ;  In  re 
Brown's  Adoption,  25  Pa.  Super.  Ct.  259^  While  the  Adoption  Act  is  in 
derogation  of  the  common  law  in  so  far  as  judgments  under  it  deprive  par- 
ents of  their  natural  rights  to  the  custody  of  their  children,  it  is,  on  the  oth- 
er hand,  highly  remedial  and  charitable  in  that  it  provides  a  method  where- 
by children  who  would  otherwise  be  the  objects  of  public  charity  are  suit- 
ably provided  for  by  persons  who  assume  a  legal  duty  to  do  so.  People  v. 
Wethel,  202  111.  App.  77.  The  adoption  statutes,  being  humane  and  salutary, 
and  designed  to  provide  homes,  care,  and  education  for  unfortunate  children, 
should  be  construed  so  as  to  encourage  the  adoption  of  such  children  by  per- 
sons who  can  properly  rear  and  educate  them.  In  re  Havsgord's  Estate,  34 
S.  D.  131,  147  N.  W.  378. 

8»  Krug  v.  Davis,  87  Ind.  590.  In  Massachusetts  the  statute  (Pub.  St.  1882, 
c.  148,  §  1)  authorizes  a  person  over  21  to  adopt  one  younger  than  himself. 
See  Collamore  v.  Learned,  171  Mass.  99,  50  N.  E.  518.  In  North  Dakota  the 
statute  authorizes  any  adult  to  adopt  a  minor,  but  the  adopter  must  be  at 
lease  10  years  older  than  the  person  adopted.  Comp.  Laws  1913,  §§  4441, 
4442.  It  is  jurisdictional  that  the  person  adopting  a  child  must  be  10  years 
older  than  the  child.  In  re  Sharron's  Estate,  179  Cal.  447,  177  Pac.  283. 


312  LEGITIMACY,  ILLEGITIMACY,  AND  ADOPTION  (Ch.  8 

married,  both  the  husband  and  wife  must  join  in  the  adoption.9* 
In  the  absence  of  statute,  either  spouse  may  adopt  a  child  without 
the  other  joining  therein;*1  but  in  such  case  the  adoption  confers 
no  rights  and  creates  no  duties  as  between  the  child  and  the  spouse 
not  joining.02  In  some  states  nonresidents  may  not  adopt  children 
residents  of  the  state,98  though  other  states  have  no  such  restric- 
tion.94 

If  the  statute  provides  for  the  adoption  of  minors,  necessarily 
the  person  adopted  must  be  under  21  years  of  age.96  There  is  some 
difference  of  opinion  where  the  statute  provides  for  the  adoption 
of  a  "child."  In  some  jurisdictions  such  statutes  have  been  con- 
strued as  referring  to  minor  children  only ; 9*  but  the  weight  of 
authority  is  that  under  such  statutes  adults  as  well  as  minors  may 
be  adopted.97 

It  is  generally  required  that  the  parents  of  the  child  to  be  adopt- 
ed, or  the  survivor  of  them,  must  consent  to  the  adoption,  unless 
such  parents  have  abandoned  the  child  or  otherwise  forfeited  the 
right  to  its  custody.98  If  the  parents  are  dead,  or  have  abandoned 

»o  in  re  Williams,  102  Cal.  70,  36  Pac.  407,  41  Am.  St.  Rep.  163 ;  Watts  v. 
Dull,  184  111.  86,  56  N.  E.  303,  75  Am.  St.  Rep.  141 ;  Jones  v.  Bean,  136  111. 
App.  545. 

»i  Barnhizel  v.  Ferrell,  47  Ind.  335;  Baskette  v.  Streight,  106  Tenn.  549, 
62  S.  W.  142 ;  In  re  Carroll's  Estate,  219  Pa.  440,  68  Atl.  1038,  123  Am.  St. 
Rep.  673. 

» 2  Baskette  v.  Streight,  106  Tenn.  549,  62  S.  W.  142;  In  re  Carroll's  Es- 
tate, 219  Pa.  440,  68  Atl.  1038,  123  Am.  St.  Rep.  673. 

»3  Knight  v.  Gallaway,  42  Wash.  413,  85  Pac.  21;  Appeal  of  Woodward,  81 
Conn.  152,  70  Atl.  453. 

e*  Caldwell's  Succession,  114  La.  195,  38  South.  140,  108  Am.  St.  Rep.  341. 

»s  Bartholow  v.  Davies,  276  111.  505,  114  N.  E.  1017 ;  McCollister  v.  Yard, 
90  Iowa,  621,  57  N.  W.  447.  See,  also,  Cornp.  Laws  N.  D.  1913,  §  4441. 

»6Anonymous,  1  Wkly.  Notes  Cas.  (Pa.)  576;  Williams  v.  Knight,  18  R.  I. 
333,  27  Atl.  210. 

»T  Markover  v.  Krauss,  132  Ind.  294,  31  N.  E.  1047,  17  L.  R.  A.  806 ;  Colla- 
more  v.  Learned,  171  Mass.  99,  50  N.  E.  518;  Sheffield  v.  Franklin,  151  Ala. 
492,  44  South.  373,  12  L.  R.  A.  (N.  S.)  884,  125  Am.  St.  Rep.  37,  15  Ann.  Cas. 
90 ;  In  re  Moran,  151  Mo.  555,  52  S.  W.  377 ;  Succession  of  Caldwell,  114  La. 
195,  38  South.  140,  108  Am.  St.  Rep.  341.  But  see  Succession  of  Pizzati,  141 
La.  645,  75  South.  498. 

»8  in  re  Williams,  102  Cal.  70,  36  Pac.  407,  41  Am.  St.  Rep.  163;  Baker  v. 
Strahorn,  33  111.  App.  59 ;  Luppie  v.  Winans,  37  N.  J.  Eq.  245 ;  Ferguson  v. 
Jones,  17  Or.  204,  20  Pac.  842,  3  L.  R.  A.  620,  11  Am.  St.  Rep.  808 ;  In  re  Mc- 
Cormick's  Estate,  108  Wis.  234,  84  N.  W.  148,  81  Am.  St.  Rep.  890 ;  Willis  v. 
Bell,  86  Ark.  473,  111  S.  W.  808;  In  re  McDevitt,  176  App.  Div.  418,  162  N. 
Y.  Supp.  1032;  In  re  Knott,  138  Tenn.  349,  197  S.  W.  1097;  In  re  Lease,  99 
Wash.  413,  169  Pac.  816.  The  mere  fact  that  the  parents  of  the  child  have 


§  115)  ADOPTION   OP   CHILDREN  313 

the  child,  consent  may  be  given  by  the  person  having  the  legal 
custody  of  the  child.89 

Though  the  statutes  in  several  states  provide  for  adoption  by 
deed  or  declaration,1  it  is  generally  required  that  adoption  shall  be 
by  judicial  proceedings  in  a  court  of  competent  jurisdiction.  Resi- 
dence, either  permanent  or  temporary,  is  usually  sufficient  to  give 
the  court  jurisdiction.2  The  statutes  usually  require  that  the  per- 
son seeking  to  adopt  a  child  shall  file  a  petition  setting  forth  the 
necessary  facts,8  and  that  proper  notice  shall  be  given  to  the  par- 
ents of  the  child  to  be  adopted,  or  other  persons  interested.4  If  the 

been  divorced  does  not  as  a  rule  do  away  with  the  necessity  of  the  consent  of 
both  parents.  In  re  Lease,  99  Wash.  413,  169  Pac.  816;  In  re  Cozza,  163 
Cal.  514,  126  Pac.  161,  Ann.  Cas.  1914A,  214.  Where  a  child  had  been 
adopted  by  its  paternal  grandparents,  the  child  was  subject  to  subsequent 
adoption  by  its  maternal  grandmother,  without  notice  to  or  consent  of  the 
child's  natural  father.  In  re  McRae,  189  N.  Y.  142,  81  N.  E.  956,  12  Ann. 
Cas.  505. 

99  Burger  v.  Frakes,  67  Iowa,  460,  23  N.  W.  746,  25  N.  W.  735;  Holmes  v. 
Derrig,  127  Iowa,  625,  103  N.  W.  973;  Chubb  v.  Bradley,  58  Mich.  208,  25 
N.  W.  186;  Egoff  v.  Board  of  Children's  Guardians  of  Madison  County,  170 
Ind.  238,  84  N.  E.  151.  Where  a  child  was  never  legally  rendered  to  or 
placed  in  custody  of  a  children's  aid  society,  it  never  had  authority  to  legally 
act  as  its  guardian  and  consent  to  its  adoption.  Ex  parte  Martin,  29  Idaho, 
716,  161  Pac.  573.  The  mere  failure  of  parents  to  support  a  child  is  not  aban- 
donment, but  there  must  be  a  giving  up  of  the  child  or  total  desertion.  In 
re  Kelly,  25  Oal.  App.  651,  145  Pac.  156.  And  see  In  re  Wright,  79  Neb.  10, 
.112  N.  W.  311.  In  Iowa  consent  to  adoption  of  an  abandoned  child  may  be 
given  by  the  mayor  of  the  city.  Anderson  v.  Blakesly,  155  Iowa,  430,  136  N. 
W.  210. 

1  See,  for  example,  Abney  v.  De  Loach,  84  Ala.  393,  4  South.  757 ;    Fos- 
burgh  v.  Rogers,  114  Mo.  122,  21  S.  W.  82,  19  L.  R.  A.  201;  Hilpire  v.  Claude, 
109  Iowa,  159,  80  N.  W.  332,  46  L.  R.  A.  171,  77  Am.  St.  Rep.  524;    Manuel 
y.  Beck,  70  Misc.  Rep.  357,  127  N.  T.  Supp.  266. 

2  Rives  v.  Sneed,  25  Ga.  612 ;    Glos  v.  Sankey,  148  111.  536,  36  N.  E.  628, 
23  L.  R.  A.  665,  39  Am.  St.  Rep.  196 ;   In  re  Brown's  Adoption,  25  Pa.  Super. 
Ct.  259. 

3  Watts  v.  Dull,  184  111.  86,  56  N.  E.  303,  75  Am.  St.  Rep.  141 ;   In  re  McCor- 
mick's  Estate,  108  Wis.  234,  84  N.  W.  148,  81  Am.  St.  Rep.  890;    In  re  Edds, 
137  Mass.  346.     Husband  and  wife  must  join  in  the  petition.     Davis  v.  Mc- 
Graw,  206  Mass.  294,  92  N.  E.  332,  138  Am.  St.  Rep.  398. 

*  In  re  Humphrey,  137  Mass.  84 ;  Glos  v.  Sankey,  148  111.  536,  36  N.  E.  628, 
23  L.  R.  A.  665,  39  Am.  St.  Rep.  196;  Parsons  v.  Parsons,  101  Wis.  76,  77 
N.  W.  147,  70  Am.  St.  Rep.  894 ;  Omaha  Water  Co.  v.  Schmal,  147  Fed.  502, 
78  C.  C.  A.  68  (construing  Nebraska  statute);  People  v.  Sullivan,  126  111. 
App.  389.  Under  Thompson's  Shannon's  Code,  §§  5409-5411,  relating  to  adop- 
tion, but  not  providing  for  notice  to  the  natural  parents  of  child  to  be  adopt- 
ed, some  notice  to  and  some  appearance  of  such  parents  must  be  shown, 
though  the  notice  need  not  necessarily  be  a  formal  notice.  In  re  Knott,  138 
Term.  349,  197  S.  W.  1097. 


314  LEGITIMACY,  ILLEGITIMACY,  AND  ADOPTION  (Ch.  8 

statutory  requirements  have  been  substantially  complied  with,  and 
it  appears  that  the  best  interests  of  the  child  will  be  promoted 
thereby  the  court  will  in  the  exercise  of  its  discretion  enter  an  order 
or  decree  of  adoption.6 

Status  of  Adoptive  Parent  and  Child 

Where  the  artificial  relation  of  parent  and  child  is  created  by 
adoption  under  the  statutes,  the  relation  will,  by  the  express  pro- 
visions of  most  of  the  statutes,  and  even  independently  of  such 
express  provisions,  give  rise  to  substantially  the  same  rights,  du- 
ties, and  liabilities  as  arise  out  of  the  natural  relation.6  The  law, 
cannot,  and  does  not  purport  to,  do  the  work  of  nature,  and  create 
one  a  child  who  by  nature  is  a  stranger.7  But  it  can  and  does  fix 
the  status  of  the  adoptive  child  to  the  adoptive  parent  as  substan- 
tially the  same  as  the  status  of  a  natural  child.8  By  the  act  of 
adoption,  the  child  becomes,  in  a  legal  sense,  the  child  of  the  adop- 
tive parent.9  The  general  effect  of  adoption,  therefore,  is,  with  few 
exceptions,  to  place  the  parties  in  the  legal  relation  of  parent  and 
child,  with  all  the  legal  consequences.10  The  law  declares  the  sta- 
tus, and  from  the  status,  as  a  necessary  consequence,  spring  the  or- 

B  In  re  Ward's  Estate,  59  Misc.  Rep.  328,  112  N.  Y.  Supp.  282 ;  In  re  Wells, 
60  Wash.  518,  111  Pac.  778.  The  welfare  of  the  child  is  the  controlling  fac- 
tor in  the  determination  of  adoption  proceedings.  Knight  v.  Galloway,  42 
Wash.  413,  85  Pac.  21 ;  In  re  Peterson's  Estate,  212  Pa.  453,  61  Atl.  1005 ;  In 
re  Sharron's  Estate,  179  Cal.  447,  177  Pac.  283.  The  Supreme  Court,  in  the 
exercise  of  its  equity  jurisdiction,  may  annul  an  adoption  to  promote  the 
child's  welfare.  In  re  McDevitt,  176  App.  Div.  418,  162  N.  T.  Supp.  1032. 
Lawfully  rendered  decree  of  adoption  adjudicates  status  of  minor  as  to  fu- 
ture parentage  at  law  and  extinguishes  parental  rights  of  natural  parents, 
and  the  court  has  no  continuing  jurisdiction  as  in  guardianship  or  divorce, 
proceedings.  In  re  Lease,  99  Wash.  413,  169  Pac.  816.  An  adoption  is  ipso 
facto  revoked  by  a  second  adoption  of  the  child  by  other  persons;  the  adop- 
tive parent  consenting  thereto.  Klapp  v.  Pulsipher,  197  Mich.  615,  164  N.  W. 
381,  L.  R.  A.  1918A,  818. 

e  As  to  the  rights  and  duties  arising  out  of  the  natural  relation  of  parent 
and  child,  see  post,  pp.  321,  339. 

"  Adoption  does  not  change  the  child's  identity,  nor  make  him  a  child  in 
fact.  In  re  Puterbaugh's  Estate,  261  Pa.  235,  104  Atl.  601,  5  A.  L.  R  1277: 

s  Riley  v.  Day,  88  Kan.  503,  129  Pac.  524,  44  L.  R.  A.  (N.  S.)  296 ;  Kroff  v. 
Amhein,  94  Ohio  St.  282,  114  N.  E.  267;  Scott  v.  Scott  (D.  C.)  247  Fed.  976; 
Franklin  v.  Fairbanks,  99  Kan.  271,  161  Pac.  617. 

»  Miller  v.  Miller,  123  Iowa,  165,  98  N.  W.  631;  Rives  v.  Sneed,  25  Ga. 
612. 

10  in  re  Knott,  138  Tenn.  349,  197  S.  W.  1097.  -On  readoption  the  rights  of 
the  first  adopter  are  ipso  facto  terminated.  Klapp  v.  Pulsipher,  197  Mich. 
615,  164  N.  W.  381,  L.  R.  A.  1918A,  818. 


§  115)  ADOPTION   OF   CHILDREN  315 

dinary  rights,  duties,  and  liabilities  which  arise  out  of  the  same 
status  created  by  nature.11  In  Texas,  however,  adoption  does  not 
constitute  the  adopted  person"  a  member  of  the  family  of  the  adopt- 
er, nor  does  it  confer  the  privileges  or  impose  the  duties  of  parent 
and  child.  The  person  adopted  is  adopted  merely  as  heir  and  not  as 
child  of  the  adopter.12 

In  accordance  with  the  general  principles  set  forth  above,  the 
adoptive  parent  is  entitled  to  the  custody,18  services,  and  earnings 
of  the  adopted  child,14  and  is  bound  to  support  and  maintain  such 
child.15  The  adopted  child  acquires  the  domicile  of  its  parent  by 
adoption,16  and  its  domicile  will  change  with  the  change  of  domicile 
of  the  adopting  parent.17  The  property  rights  of  an  adopted  child 
are  substantially  the  same  as  those  of  a  natural  child,18  and  conse- 
quently the  adopting  parent  is  entitled  to  dispose  of  his  property 
by  will  as  he  may  see  fit.lp 

11  Humphries  v.  Davis,  100  Ind.  274,  50  Am.  Rep.  788;   Paul  v.  Davis,  100 
Ind.  422;    Lunay  v.  Vantyne,  40  Vt.  503;    Sewall  v.  Roberts,  115  Mass.  262; 
Burrage  v.  Briggs,  120  Mass.  103;    Rives  v.   Sneed,  25  Ga.  612;    Moran  v. 
Stewart,  122  Mo.  295,  26  S.  W.  962. 

12  Harle  v.  Harle  (Tex.)  204  S.  W.  317,  reversing  (Tex.  Civ.  App.)  166  S.  W. 
674;    Eckford  v.  Knox,  67  Tex.  205,  2  S.  W.  372;    State  ex  rel.  Walton  v. 
Yturria  (Tex.)  204  S.  W.  315,  L.  R.  A.  1917F,  1079. 

isTilley  v.  Harrison,  91  Ala.  295,  8  South.  802;  In  re  Clements,  78  Mo. 
352.  As  to  religious  training  of  adopted  child,  see  Purinton  v.  Jamrock,  195 
Mass.  187,  80  N.  E.  802,  18  L.  R.  A.  (N.  S.)  926. 

i*Tilley  v.  Harrison,  91  Ala.  295,  8  South.  802.    And  see  In  re  Carroll,  219 
Pa.  440,  68  Atl.  1038,  123  Am.  St.  Rep.  673.    The  adopting  parent  may  main- 
tain an  action  for  damages  for  the  wrongful  death  of  the  adopted  child. 
Ransom  v.  New  York,  C.  &  St.  L.  Ry.  Co.,  93  Ohio  St.  223,  112  N.  E.  586, . 
L.  R,  A.  1916E,  704.    And  see  Carpenter  v.  Buffalo  General  Electric  Co.,  213 ' 
N.   Y.   101,  106  N.  E.  1026,  Ann.   Cas.  1916C,  754.     But  see  Mount  v.  Tre- 
mount  Lumber  Co.,  121  La.  64,  46  South.  103,  16  L.  R.  A.   (N.  S.)  199,  126 
Am.  St.  Rep.  312,  15  Ann.  Cas.  148. 

is  Ryan  v.  Foreman,  181  111.  App.  262,  affirmed  in  262  111.  175,  104  N.  E. 
189,  Ann.  Cas.  1915B,  780;  Beach  v.  Bryan,  155  Mo.  App.  33,  133  S.  W. 
635;  Greenman  v.  Gillerman's  Estate,  188  Mich.  74,  154  N.  W.  82.  A  nat- 
ural parent  cannot  recover  from  the  adoptive  parent  for  the  support  of  the 
child  while  it  is  in  his  own  home  and  custody.  McNemar  v.  McNemar,  137 
111.  App.  504. 

IB  Washburn  v.  White,  140  Mass.  568,  5  N.  E.  813. 

17  Woodward  v.  Woodward,  87  Tenn.  644,  11  S.  W.  892. 

is  Odenbreit  v.  Utheim,  131  Minn.  56,  154  N.  W.  741,  L.  R.  A.  1916D,  421. 

18  Malaney  v.  Cameron,  99  Kan.  70,  424,  161  Pac.  1180,  affirming  judgment 
on   rehearing   98   Kan.    620,    159    Pac.    19,    additional   rehearing    denied   99 
Kan.  677,  162  Pac.  1172 ;    Horton  v.  Troll,  183  Mo.  App.  677,  167  S.  W.  10S1 ; 
Masterson  v.  Harris,  107  Tex.  73,  174  S.  W.  570. 


316  LEGITIMACY,  ILLEGITIMACY,  AND  ADOPTION  (Ch.  S 

The  natural  parents  are  divested  of  all  personal  rights  in  respect 
to  the  child,  and  are  relieved  of  all  legal  duties  as  its  parents.20 
They  lose,  for  instance,  and  the  adoptive  parent  acquires,  the  right 
to  the  child's  custody  and  control,  and  to  its  services  and  earn- 
ings ; 21  and  they  are  relieved  from,  and  the  adoptive  parent  as- 
sumes, the  duties  of  maintenance,  education,  etc. 

Rights  of  Inheritance 

The  right  of  inheritance  by  and  from  adopted  children  is  very 
generally  regulated  by  statute,  and  the  statutes,  in  this  as  in  other 
respects,  vary  in  the  different  states.  The  rights  of  inheritance  by 
reason  of  an  adoption  are  determined  by  the  law  in  force  at  the  time 
such  rights  accrue,  and  not  by  the  law  in  force  at  the  time  of  the 
adoption.22  In  most,  if  not  all,  states  the  adopted  child  becomes  the 
heir  of  the  adoptive  parent  in  all  respects  as  if  he  were  a  natural 
child,28  except  that  in  some  states  he  cannot  take,  by  representa- 

20  In  re  Masterson's  Estate,  45  Wash.  48,  87  Pac.  1047,  122  Am.  St.  Rep. 
886 ;   Allison  v.  Bryan,  26  Okl.  520,  109  Pac.  934,  30  L.  R,  A.  (N.  S.)  146,  13* 
Am.  St.  Rep.  988 ;   In  re  Macrae,  189  N.  Y.  142,  81  N.  E.  956,  12  Ann.  Gas.  505 ; 
In  re  Cozza,  163  Cal.  514,  126  Pac.  161,  Ann.  Cas.  1914A,  214.     And  see 
State  v.  Kelley,  32  S.  D.  526,  143  N.  W.  953.     See,  also,  Schlitz  v.  Roenitz, 
86  Wis.  31,  56  N.  W.  194,  21  L.  R.  A.  483,  39  Am.  St.  Rep.  873. 

21  Lunay  v.  Vantyne,  40  Vt.  503. 

22R0senkrans  v.  Rosenkrans,  163  App.  Div.  730,  148  N.  Y.  Supp.  954, 
affirmed  220  N.  Y.  628,  115  N.  E.  1050;  United  States  Trust  Co.  v.  Hoyt, 
150  App.  Div.  621,  135  N.  Y.  Supp.  849;  In  re  Sorenson  v.  Rasmussen,  114 
Minn.  324,  131  N.  W.  325,  35  L.  R.  A.  (N.  S.)  216. 

23  See  Barnes  v.  Allen,  25  Ind.  222;  Virgin  v.  Marwick,  97  Me.  578,  55 
Atl.  520;  Davis  v.  Krug,  95  Ind.  1;  Humphries  v.  Davis,  100  Ind.  274,  50 
Am.  Rep.  788:  Sewall  v.  Roberts,  115  Mass.  262;  Ross  v.  Ross.  129  Mass.  243, 
517  Am.  Rep.  321 ;  In  re  Klapp's  Estate,  197  Mich.  615,  Ifi4  N.  W.  381,  L.  R.  A. 
191 8A,  818;  Adams  v.  Merrill,  45  Ind.  App.  315,  85  N.  E.  1H,  87  N.  E. 
36;  Wagner  v.  Varner,  50  Iowa,  582;  Keegan  v.  Geraghty,  101  111.  26;  Glos 
v.  Sankey,  148  111.  536,  36  N.  E.  628.  23  L.  R.  A.  660,  39  Am.  St.  Rep.  196; 
Coin.  v.  Nancrede,  32  Pa.  389;  Schafer  v.  Eneu,  54  Pa.  304;  Moran  v. 
Stewart,  122  Mo.  295,  26  S.  W.  962 ;  Riley  v.  Day,  88  Kan.  503,  129  Pac. 
524,  44  L.  R.  A.  (N.  S.)  296;  Ultz  v.  Upham,  177  Mich.  351,  143  N.  W.  66; 
Horton  v.  Troll,  183  Mo.  App.  677,  167  S.  W.  1081;  In  re  Cupples'  Estate, 
272  Mo.  465,  199  S.  W.  556;  In  re  Pepin's  Estate,  53  Mont.  240,  163  Pac. 
104;  Nickerson  v.  Hoover  (Ind.  App.)  115  N.  E.  588.  If  the  husband  only 
adopts  the  child,  the  wife  not  joining  in  the  adoption,  the  child  cannot  in- 
herit her  estate.  In  re  Carroll's  Estate,  219  Pa.  440,  68  Atl.  1038,  123  Am. 
St.  Rep.  673.  On  a  second  adoption  the  child  loses  all  rights  of  inheritance 
under  the  first  adoption,  and  is  entitled  only  to  inherit  under  the  second 
adoption.  Klapp  v.  Pulsipher,  197  Mich.  615,  164  N.  W.  381.  In  Missis- 
sippi adoption  does  not  include  heirship,  unless  specifically  conferred  in  the 
decree.  Beaver  v.  Crump,  76  Miss.  34,  23  South.  432;  Adams  v.  Adams,  102 
Miss.  256,  59  South.  84,  Ann.  Cas.  1914D,  235.  Leonard  v.  H.  Weston  Lumber 
Co.,  107  Miss.  729,  65  South.  459.  See,  also,  Webb  v.  Mclntosh,  178  Iowa, 


§  115)  ADOPTION   OF   CHILDREN  317 

tion,  from  the  adoptive  parent's  kindred,  either  lineal  or  collateral.2* 
If  the  adopted  child  die  during  the  lifetime  of  the  adoptive  parent, 
leaving  issue  surviving,  the  surviving  child  inherits  by  represen- 
tation from  the  adopting  parent,  who  dies  intestate.28  In  some 
states  it  is  expressly  provided  that  the  adopted  person  can  also  in- 
herit from  his  natural  parents  or  kindred,  though  such  a  provision 
would  not  be  necessary  to  so  entitle  him.26 

In  most  states,  either  by  express  provision  or  necessary  impli- 
cation, the  adoptive  parent  may  inherit  from  the  adopted  person,27 

156,  159  N.  W.  637.  When  adopted  person  acquires  property  by  descent 
from  his  adopter,  it  is  not  because  he  is  a  child  of  the  adopter,  but  because 
Adoption  Statute,  §§  1,  2,  puts  him  in  position  of  child  with  respect  to  in- 
heritance. State  v.  Yturria  (Tex.)  204  S.  \V.  315,  L.  R.  A.  1918F,  1079,  re- 
versing judgment  (Civ.  App.)  189  S.  W.  291. 

24  See  Keegan  v.  Geraghty,  101  111.  26.  And  see,  also,  Van  Derlyn  v.  Mack, 
137  Mich.  146,  100  N.  W.  278,  66  L.  R.  A.  437,  109  Am.  St.  Rep.  669,  4 
Ann  Cas.  879;  Wallace  v.  Noland,  246  111.  535,  92  N.  B.  956,  138  Am.  St. 
Rep.  247;  Ryan  v.  Foreman,  181  111.  App.  262,  affirmed  262  111.  175,  104  N. 
B.  189,  Ann.  Cas.  1915B,  780;  Hockaday  v.  Lynn,  200  Mo.  456,  98  S.  W. 
565,  8  L.  R.  A.  (N.  S.)  117,  118  Am.  St.  Rep.  672,  9  Ann.  Cas.  775;  In  re 
Burnett's  Estate,  219  Pa.  599,  69  Atl.  74;  Rhode  Island  Hospital  Trust 
Co.  v.  Humphrey,  32  R.  I.  318,  79  Atl.  829.  Under  the  adoption  statute 
(Pub.  St.  1882,  c.  164,  §§  6,  7 ;  Gen.  Laws  1909,  c.  244,  §§  5,  6)  no  right  of  in- 
heritance from  a  child  of  the  adopting  parent  born  to  him  in  lawful  wed- 
lock is  given  to  an  adopted  child.  Batcheller-Durkee  v.  Batcheller,  39  R.  I. 
45,  97  Atl.  378,  L.  R.  A.  1916E,  545. 

25Bernero  v.  Goodwin,  267  Mo.  427,  184  S.  W.  74;  Williams  v.  Rollins, 
271  Mo.  150,  195  S.  W.  1009;  Kroff  v.  Amrhein,  5  Ohio  App.  37,  judgment 
affirmed  114  N.  E.  267 ;  Walworths'  Estate,  85  Vt.  322,  82  Atl.  7,  37  L.  R.  A. 
(N.  S.)  849,  -Ann.  Cas.  1914C,  1223.  Where  one  leaves  a  life  estate  to  his 
sole  heir,  an  adopted  daughter,  and  the  remainder  to  her  issue,  if  any,  on 
her  death  without  issue,  the  remainder  descends  to  those  who  claim  through 
her,  and  not  to  the  ancestor's  collateral  kindred.  Franklin  v.  Fairbanks, 
99  Kan.  271,  161  Pac.  617. 

26  Wagner  v.  Varner,  50  Iowa,  532;  Humphries  v.  Davis,  100  Ind.  274,  50 
Am.  Rep.  788 ;  Clarkson  v.  Hatton,  143  Mo.  47,  44  S.  W.  761,  39  L.  R.  A.  748, 
65  Am.  St.  Rep.  635;  In  re  Klapp's  Estate,  197  Mich.  615,  164  N.  W.  381, 
L.  R.  A.  1918A,  818;  H,ead  v.  Leak,  61  Ind.  App.  253,  111  N.  E.  952;  Mc- 
Kellar  v.  Harkins,  183  Iowa,  1030,  166  N.  W.  1061.  But  see  In  re  Darling's 
Estate,  173  Gal.  221,  159  Pac.  606.  Where  the  adoption  of  the  minors  follow- 
ed the  death  of  their  father,  it  did  not  affect  their  status  as  his  heirs.  In  re 
Pillsbury's  Estate,  175  Cal.  454,  166  Pac.  11,  3  A.  L.  R.  1396.  Under  Do- 
mestic Relations  Law,  §  114,  relating  to  rights  of  adopted  person,  the  right  of 
a  half-sister  of  an  intestate  to  share  in  his  estate  was  not  lost  by  her  previous 
legal  adoption  by  a  stranger.  In  re  Landers'  Estate,  100  Misc.  Rep.  635,  166 
N.  Y.  Supp.  1036.  A  child  adopted  by  her  grandfather  cannot  take  in  the  dual 
capacity  of  grandchild'  and  adopted  child,  but  can  take  only  one  share.  Bill- 
ings v.  Head,  184  Ind.  361,  111  N.  E.  177. 

2  7  See  Swick  v.  Coleman,  218  111.  33,  75  N.  E.  807,  affirming  Coleman  v. 


318  LEGITIMACY,  ILLEGITIMACY,  AND  ADOPTION  (Ch.  8 

though  generally  the  right  is  limited  to  property  received  from 
or  throirgh  the  adoptive  parent.28 

As  to  the  right  of  inheritance  by  and  from  adopted  persons,  where 
the  statute  is  silent  on  the  subject,  the  authorities  are  not  very 
clear.  In  Indiana,  where  the  statute  was  silent  on  this  question, 
it  was  held,  after  a  thorough  consideration,  and  a  full  review  of 
the  authorities,  that  where  an  adopted  child  acquires  property 
by  inheritance,  not  from  his  natural  parents  or  kindred,  but  from 
his  adoptive  mother,  such  property,  on  the  death  of  the  child,  will 
go  to  his  adoptive  father,  to  the  exclusion  of  his  natural  parents 
or  kindred.29  The  court  was  influenced  by  the  consideration  that 
this  was  only  just,  in  view  of  the  fact  that  the  property  had  been 
acquired  by  the  child  from  its  adoptive  parent,  and  not  from  its 
natural  parent,  and  that  equity  has  a  potent  influence  in  the  con- 
struction of  statutes.  It  was  also  considered,  however,  on  princi- 
ple and  on  authority,  that  this  result  followed  necessarily  from  the 
legal  status  of  adoptive  parent  and  child.  The  status  of  an  adopt- 
ed child,  it  was  said,  for  all  legal  purposes,  and  as  to  property 
inherited  by  it  from  an  adoptive  parent,  is  that  of  a  natural  child. 

In  the  case  just  referred  to,  the  court  expressly  limited  its  de- 
cision to  the  facts,  and  it  was  intimated,  if  not  virtually  conceded, 
that. property  inherited  by  a  child  from  its  natural  parent  would  go 
back  to  its  natural  kindred,  to  the  exclusion  of  its  adoptive  parent ; 
and  in  some*  cases  it  has  been  expressly  so  held.80 

In  Missouri  it  was  held  that,  though  the  legal  relation  of  parent 
and  child  exists  between  adoptive  parent  and  child,  yet,  as  the 
statute  vests  the  right  of  inheritance  in  the  child  only,  the  adoptive 

Swick,  120  111.  App.  381;  In  re  Jobson's  Estate,  164  Cal.  312,  128  Pac.  938, 
43  L.  R.  A.  (N.  S.)  1062;  Calhoun  v.  Bryant,  28  S.  D.  266,  133  N.  W.  266; 
In  re  Darling's  Estate,  173  Cal.  221,  159  Pac.  606.  See,  also,  MacMaster 
v.  Fobes,  226  Mass.  396,  115  N.  E.  487.  But  see  Edwards  v.  Yearby,  168  N. 
C.  663,  85  S.  E.  19,  L.  R.  A.  1815E,  462. 

2  s  Dunn  v.  Means,  48  Ind.  App.  383,  95  N.  E.  1015;  Warner  v.  King,  267 
111.  82,  107  N.  E,  837 ;  Lanferman  v.  Vanzlle,  150  Ky.  751,  150  S.  W.  1008,  Ann. 
Cas.  1914D,  563.  Since  an  adopted  child  under  Rev.  Laws,  c.  154,  becomes 
the  child  of  both  adopting  parents,  and  inherits  from  them  the  same  as 
other  children,  on  such  child's  dying  intestate  her  property  descends  to  all 
of  her  next  of  kin  by  adoption,  irrespective  of  whether  it  came  from  one 
adopting  parent  or  the  other.  MacMaster  v.  Fobes,  226  Mass.  396,  115  N.  E. 
487. 

2»  Humphries  v.  Davis,  100  Ind.  274,  50  Am.  Rep.  788  (collecting  and  re- 
viewing the  cases).  But  see  Hole  v.  Robbins,  53  Wis.  514,  10  N.  W.  617. 

so  Hole  v.  Robbins,  53  Wis.  514,  10  X.  W.  617.  And  see  dictum  in  Hum- 
phries v.  Davis,  110  Ind.  274,  50  Am.  Rep.  788. 


§  115)  ADOPTION   OF   CHILDREN  319 

parent  cannot  inherit  from  the  adopted  child ;  and  that,  even  where 
the  child  has  acquired  property  from  an  adoptive  parent  under  the 
statute,  the  property,  on  the  child's  death  intestate,  goes  to  its 
natural  parents  or  kinsmen.81  But  this  decision  has  been  very  just- 
ly criticised.82 

In  Massachusetts  the  doctrine  that  the  legal  status  of  adoptive 
parent  and  child  is  the  same  in  substance  as  that  of  natural  parent 
and  child  was  carried  so  far  as  to  hold  that  an  adopted  child  took 
as  a  child  under  a  residuary  clause  of  the  adoptive  mother's  will, 
where  the  specific  legacy  had  lapsed.88 

Agreement  to  Adopt — Invalid  Adoption 

Mere  agreements  to  adopt  a  child  cannot,  in  the  absence  of  a  stat- 
ute so  providing,  give  rise  to  the  relation  of  parent  and  child,  such 
as  results  from  a  legal  adoption.34  But,  where  such  agreements 
purport  to  make  the  child  the  heir  of  the  adopting  person,  equity 
will  enforce  the  agreement  to  protect  the  rights  of  the  child.85  And 
if  the  contract  to  adopt  was  valid  in  the  state  where  it  was  made  it 
will  be  given  effect  in  another  state,  though  it  would  not  have  been 
effective  as  an  adoption  in  the  latter  state.86  So,  too,  a  defective 
adoption  may  be  construed  as  a  contract  to  adopt  which  will  be  en- 
forced in  equity.37 

Persons  Standing  in  Loco  Parentis 

When  a  person  assumes  a  liability  to  maintain,  rear,  and  educate 
a  child,  or  receives  a  child  into  his  family  under  such  circumstances 

81  Reinders  v.  Koppelmann,  68  Mo.  482,  30  Am.  Rep.  802.    But  see  Laws 
Mo.  1917,  p.  193  (Act  April  10,  1917). 

82  Humphries  v.  Davis,  100  Ind.  274,  50  Am.  Rep.  788. 
ss  Burrage  v.  Briggs,  120  Mass.  103. 

s*  Wall  v.  McEnnery's  Estate,  105  Wash.  445,  178  Pac.  631 ;  Malaney  v. 
Cameron,  98  Kan.  620,  159  Pac.  19,  judgment  affirmed  on  rehearing  99  Kan. 
70,  424,  161  Pac.  1180,  additional  rehearing  denied  99  Kan.  677,  162  Pac. 
1172. 

35  Odenbreit  v.  Utheira,  131  Minn.  56,  154  N.  W.  741,  L.  R.  A.  1916D,  421; 
Fiske  v.  Lawton,  124  Minn.  85,  144  N.  W.  455;  Chehak  v.  Battle,  333  Iowa, 
107,  110  N.  W.  330,  8  L.  R.  A.  (N.  S.)  1130,  12  Ann.  Cas.  140;  Buck  v.  Meyer, 
195  Mo.  App.  287,  190  S.  W.  997;  Signaigo  v.  Signaigo  (Mo.)  205  S.  W.  23', 
Barney  v.  Hutchinson,  25  N.  M.  82,  177  Pac.  890.  And  see  Malaney  v. 
Cameron,  99  Kan.  70,  424,  161  Pac.  1180,  affirming  judgment  on  rehearing 
98  Kan.  620,  159  Pac.  19,  additional  rehearing  denied  99  Kan.  677,  162 
Pac.  1172. 

se  In  re  Herrick's  Estate,  124  Minn.  85,  144  N.  W.  455. 

87  Prince  v.  Prince,  194  Ala.  455,  69  South.  906 ;  Anderson  v.  Blakesly,  155 
Iowa,  430,  136  N.  W.  210. 


320  LEGITIMACY,  ILLEGITIMACY,  AND  ADOPTION  (Ch.  8 

as  give  rise  to  the  presumption  that  he  has  assumed  such  liability, 
there  being  no  legal  adoption,  such  person  is  said  to  stand  in  loco 
parentis  to  the  child.88  One  who  assumes  that  relation  is  generally 
entitled  to  the  rights  and  subject  to  the  duties  of  an  actual  parent." 

What  Law  Governs 

Since  status,  independent  of  any  rights  that  may  flow  from  that 
status,  is  dependent  on  the  law  of  the  domicile  of  the  person  at  the 
time  the  status  is  acquired,40  the  question  whether  a  child  has  ac- 
quired the  status  of  an  adopted  child  is  determined  by  the  law  of 
the  state  where  the  adoption  took  place,41  and  an  adoption  valid 
and  effective  in  the  state  where  made  will  be  recognized  as  creating 
the  status  in  every  other  state.42  As  to  the  rights  of  inheritance 
resulting  from  the  adoption,  they  are  determined  by  the  law  of 
the  domicile  of  the  decedent  in  the  case  of  personal  property,  and 
lex  rei  sitae  in  the  case  of  real  property,  and  not  by  the  law  of  the 
place  of  adoption.48 

»8  in  re  Bull's  Estate,  1  Leg.  Op.  (Pa.)  125;  Brinkerhoff  v.  Mersells  Ex'rs, 
24  N.  J.  Law,  680;  Schrimpf  v.  Settegast,  36  Tex.  296.  Zent  v.  Fuchs,  60 
Hun,  582,  14  N.  Y.  Supp.  806 :  Von  der  Horst  v.  Yon  der  Horst,  88  Md.  127, 
41  Atl.  124. 

33  Williams  v.  Hutchinson,  3  N.  Y.  312,  53  Am.  Dec.  301.  As  to  the  rights 
and  duties  of  a  natural  parent,  see  post,  pp. -321,  339. 

<o  Matre  v.  Sankey.  148  111.  536,  36  N.  E.  628,  23  I*  R.  A.  665,  39  Am.  St. 
Rep.  196  ;•  Woodward  v.  Woodward,  87  Tenn.  644,  11  S.  W.  892. 

41  Ross  v.  Ross,  129  Mass.  243,  37  Am.  Rep.  321;    Anderson  v.  French,  77 
N.  H.  509,  93  Atl.  1042,  L.  R.'  A.  1916A.  660,  Ann.  Cas.  1916B,  89 ;    Appeal 
of  Woodward,   81   Conn.   152.  70   Atl.   456   (holding  that  an   adoption   once 
legally  made  is  not  terminated  by  a  change  of  domicile). 

42  See  cases  cited  in  preceding  note. 

*3  Keegan  v.  Geraghty,  101  111.  26;  Calhoun  v.  Bryant,  28  S.  D.  266,  133  N. 
W.  266;  Van  Matre  v.  Sankey,  148  111.  536,  36  N.  E.  628,  23  L.  R.  A.  6G5, 
39  Am.  St.  Rep.  196 ;  Ross.  v.  Ross,  129  Mass.  243,  37  Am.  Rep.  321 ;  Ander- 
son v.  French,  77  N.  H,  509,  93  Atl.  1042,  L.  R.  A.  1916A,  660,  Ann.  Cas. 
1916B,  89;  Finley  v.  Brown,  122  Tenn.  310,  123  S.  W.  359,  25  L.  R.  A.  (N.  S.) 
1285.  But  see  Brown  v.  Finley,  157  Ala.  424,  47  South.  577,  21  L.  R.  A.  679, 
131  Am.  St.  Rep.  68,  16  Ann.  Cas.  778.  Apparently  contrary  to  the  above 
cases  is  In  re  Sunderland,  60  Iowa,  732,  13  N.  W.  655.  But  this  case  in- 
volved an  adoption  by  special  act  of  the  Legislature  of  Louisiana,  and 
should  therefore  be  distinguished  from  the  cases  cited  above.  In  Snick 
v.  Howe,  137  Iowa,  249,  114  N.  W.  916,  14  L.  R.  A.  (N.  S.)  980,  the  law  of 
the  place  of  adoption  (New  York)  and  the  law  of  Iowa  (where  intestate 
died)  were  the  same.  Boaz  v.  Swinney,  79  Kan.  332,  99  Pac.  621,  is  clearly 
contrary  to  the  weight  of  authority. 


§  116)  DUTIES  AND  LIABILITIES  OF  PARENTS  321 

CHAPTER  IX 

DUTIES  ANI>  LIABILITIES  OF  PARENTS 

116.  Parent's  Duty  to  Maintain  Child. 

117.  Maintenance  in  Equity — Allowance  Out  of  Child's  Estate. 

118.  Contracts  by  Child  as  Parent's  Agent. 

119.  Parent's   Duty  to  Protect  Child. 

120.  Parent's  Duty  to  Educate  Child. 

121.  '  Parent's  Liability  for  Child's  Torts. 

122.  Parent's  Liability  for  Child's  Crimes. 

PARENT'S  DUTY  TO  MAINTAIN  CHILD 

116.  Whether  there  is  a  legal  duty  on  the  part  of  the  parent,  at 
common  law,  to  maintain  his  minor  child,  so  as  to  render 
him  liable  for  necessaries  furnished  the  child,  is  a  question 
upon  which  the  authorities  are  conflicting. 

(a)  In  England,  and  in  some  states,  it  is  held  that  there  is  only  a 

moral  obligation,  in  the  absence  of  a  statute,  and  that  there 
is  no  liability  for  necessaries  unless  there  is  a  promise  in 
fact  to  pay  for  them,  express  or  implied.  But  even  in 
these  jurisdictions  it  is  usually  provided  by  statute  that 
the  municipal  authorities  may  compel  the  parent,  if  he  is 
able  to  to  so,  to  maintain  his  child.  In  most  states  it  is  a 
penal  offense  if  the  parent  neglect  to  support  his  minor 
child. 

(b)  In  other  states  it  is  held  that  the  obligation  is  a  legal  one, 

and  that  there  is  a  liability  for  necessaries,  in  case  of  non- 
support  by  the  parent,  in  the  absence  of  any  promise  in 
fact,  or  else  that,  if  the  obligation  is  merely  a  moral  one,  it 
is  nevertheless  sufficient  to  create  such  a  liability. 

Morally,  of  course,  a  parent  is  bound  to  support  his  children,  if 
they  are  unable  to  support  themselves.  In  most  jurisdictions  this 
moral  obligation  is  expressly  made  a  legal  obligation  by  statute.  It 
is  provided  by  the  statute  of  43  Eliz.  c.  2,  that  the  father  and  moth- 
er, grandfather  and  grandmother,  of  poor,  old,  blind,  lame,  and  im- 
potent persons,  shall  maintain  them,  if  of  sufficient  ability,  but  that 
no  person  is  bound  to  provide  for  his  children  unless  they  are  im- 
potent, or  unable  to  work,  through  infancy,  disease,  or  accident,  and 
then  that  he  is  only  obliged  to  furnish  them  with  necessaries.  Stat- 
TIFF.P.&  D.REL.(3o  ED.)— 21 


322  DUTIES  AND   LIABILITIES  OF  PARENTS  (Ch.  9 

utes  more  or  less  similar  to  this,  and  having  the  same  object,  have 
been  enacted  in  many  of  our  states.1  Even  where  this  is  not  the 
case,  it  would  seem  that  the  English  statute  is  to  be  regarded  as  in 
force,  for  it  is  old  enough  to  have  beccune  a  part  of  our  common 
law,  and  is  applicable  to  our  conditions.  In  most  states,  by  statute, 
it  is  made  a  penal  offense  for  a  parent  to  abandon  his  minor  chil- 
dren, or  neglect  to  support  them.2  Irrespective,  of  the  statutes 
referred  to,  which  are  in  the  nature  of  poor  laws,  in  many  states 
statutes  have  been  enacted  imposing  on  the  parents  of  infant  chil- 
dren the  legal  duty  of  furnishing  them  with  adequate  support  and 
education.8 

Whether  or  not,  at  common  law  and  independently  of  statutory 
provision,  a  parent  is  under  a  legal  obligation  to  support  and  main- 
tain his  children,  or  whether  it  is  merely  a  natural  duty,  binding  in 
morals  only,  is  a  question  upon  which  the  authorities  are  conflict- 
ing. The  later  English  cases  hold  that  there  is  only  a  moral  obliga- 
tion. "Except  under  the  operation  of  the  poor  law,"  said  Cockburn, 
J.,  "there  is  no  legal  obligation  on  the  part  of  the  father  to  maintain 
his  child,  unless,  indeed,  the  neglect  to  do  so  should  bring  the 
case  within  the  criminal  law.  Civilly  there  is  no  such  obligation."  * 
It  is  accordingly  held  in  England  that  a  parent,  even  where  he  neg- 
lects to  support  his  child,  is  not  liable  for  necessaries  furnished  to 
it,  in  the  absence  of  an  express  promise  to  pay  for  them,  or  conduct 
from  which  a  promise  may  be  implied  as  a  matter  of  fact.  In  other 
words,  it  is  held  that  the  law  does  not,  as  in  the  case  of  husband 
and  wife,  create  any  liability  on  the  part  of  a  parent  for  necessaries 
furnished  his  child,  in  the  absence  of  contract  in  fact,  express  or  im- 
plied, on  his  part.  "It  is  a  clear  principle  of  law,"  said  Parke,  B., 
"that  a  father  is  not  under  any  legal  obligation  to  pay  his  son's 
debts,  except,  indeed,  by  proceeding  under  St.  43  EHz.  c.  2,  by  which 
he  may,  under  certain  circumstances,  be  compelled  to  support  his 
children  according  to  his  ability ;  but  the  mere  moral  obligation  to 
do  so  cannot  impose  upon  him  any  legal  liability."  * 

1  See  the  statutes  of  the  various  states. 

-  See  post,  p.  328. 

a  See,  for  example,  Civ.  Code  Cal.  §  196,  as  distinguished  from  section  206. 
See,  also,  Rev.  Laws  Okl.  1910,  §  4367 ;  Comp.  Laws,  N.  D.  1913,  §  4423.  And 
see  the  statutes  of  various  states. 

*Bazeley  v.  Forder,  L.  R.  3  Q.  B.  559. 

'  Mortimore  v.  Wright,  6  Mees.  &  W.  482.  And  see  Shelton  v.  Springett, 
11  C.  B.  452,  where  it  is  said  that  "a  father  is  not  liable  on  a  contract  made 


3  116)  PARENT'S  DUTY  TO  MAINTAIN  CHILD  323 


In  this  country  the  rule  is  the  same  in  many  states.  In  a  number 
of  states  it  has  been  expressly  held,  in  accordance  with  the  English 
cases  referred  to,  that  a  parent  is  under  no  legal  obligation  to  sup- 
port his  children ; 6  and  that  he  is  not  liable,  therefore,  for  neces- 
saries furnished  to  them,  in  the  absence  of  any  express  contract  to 
pay  for  them,  or  a  contract  implied  in  fact.7 

The  result  of  these  decisions  is  clearly  opposed  to  every  natural 
sense  of  justice.  If  they  are  sound,  the  result  is  that  a  father  can 
desert  a  child  which,  because  of  its  youth  or  of  sickness  or  other 
cause,  is  absolutely  helpless,  and  a  stranger  who,  to  save  its  life, 
feeds  and  clothes  it,  and  procures  necessary  medical  attendance, 
cannot  recover  his  expenditures  from  the  father.  On  the  other 
hand,  if  a  husband  deserts  his  wife,  though  she  may  be  fully  able 
to  work  and  to  earn  a  living,  the  law  allows  her  to  bind  her  hus- 
band for  necessaries  furnished  her,  even  against  his  express  com- 
mand not  to  furnish  them.8  Again,  it  is  well  settled,  both  in  Eng- 
land and  in  this  country,  that  a  parent  who,  being  able,  neglects  to 
provide  the  necessaries  of  life,  including  necessary  medical  attend- 
ance, for  a  child  who  is  unable  to  provide  for  himself,  and  thereby 
causes  the  child's  death,  is  guilty  of  manslaughter  at  least;  and, 
if  the  neglect  is  willful  and  malicious,  he  is  guilty  of  murder.9  It  is 
equally  well  settled,  as  a  general  principle  of  law,  that  to  render  a 
person  guilty  of  manslaughter,  because  of  a  neglect  of  duty  causing 
another's  death,  the  duty  must  be  a  legal,  as  distinguished  from  a 
merely  moral,  duty.10  It  is  inconsistent,  therefore,  to  hold  a  parent 

by  his  minor  child,  even  for  necessaries  furnished,  unless  an  actual  authority 
be  proved  or  the  circumstances  be  sufficient  to  imply  one."  And  it  is  also 
said  that  the  mere  obligation  to  provide  for  the  child's  maintenance  affords 
no  legal  inference  for  a  promise.  It  is  not  altogether  clear  that  these  deci- 
•sions  are  sustainable  by  authority.  See  Rawlyns  v.  Vandyke,  3  Esp.  252; 
Stone  v.  Carr,  Id.  1. 

s  Kelley  v.  Davis,.  49  N.  H.  187,  6  Am.  Rep.  499  (but  see  Hillsborough  v. 
Deering,  4  N.  H.  86 ;  Pidgin  v.  Cram,  8  N.  H.  352) ;  Gordon  v.  Potter,  17  Vt. 
348;  Freeman  v.  Robinson,  38  N.  J.  Law,  383,  20  Am.  Rep.  399;  Raymond 
v.  Loyl,  10  Barb.  (N.  Y.)  483;  Chilcott  v.  Trimble,  13  Barb.  (N.  Y.)  502; 
Hunt  v.  Thompson,  3  Scam.  (111.)  179,  36  Am.  Dec.  538;  McMillen  v.  Lee,  78 
111.  443  (but  see  cases  cited  in  note  31,  infra);  Hollingsworth  v.  Sweden- 
borg,  49  Ind.  378,  19  Am.  Rep.  687 ;  Holt  v.  Baldwin,  46  Mo.  265,  2  Am.  Rep. 
515;  White  v.  Mann,  110  Ind.  74,  10  N.  E.  629.  And  see  Sassaman  v.  Wells, 
178  Mich.  167,  144  N.  W-  478. 

7  See  the  cases  cited  above. 

s  Ante,  p.  175. 

•  Clark,  Cr.  Law,  177,  and  cases  there  cited ;  Reg.  v.  Morby,  Clark,  Cr. 
Cas.  75. 

10  Clark,  Cr.  Law,  177,  178,  and  cases  there  cited. 


324  DUTIES  AND  LIABILITIES   OF  PARENTS  (Ch.  9 

criminally  liable  for  neglect  to  support  his  child,  and  at  the  same 
time  to  say  that  he  is  under  no  legal  obligation  to  support  it.  The 
law  says  that  a  parent  is  criminally  liable  for  neglect  causing  his 
child's  death ;  and  it  says  that  a  stranger  who  sees  a  child  starving 
on  the  common,  or  attacked  by  a  dog,  or  drowning,  is  not  criminally 
liable  for  not  rescuing  it,  because  the  stranger  is  not  legally,  but 
only  morally,  bound  to  interfere.  And  yet  the  law  also  says  that 
a  parent  is  not  under  a  legal,  but  only  under  a  moral,  obligation  to 
feed  his  starving  child. 

These  inconsistencies  in  the  decisions  show  that  some  of  them 
are  wrong.  The  truth  is  that,  in  reason  and  on  principle,  a  parent 
is  legally,  as  well  as  morally,  bound  to  support  his  children,  if  they 
are  unable  to  care  for  themselves,  and  if  he  is  able  to  do  so ;  and  if 
he  neglects  to  do  so,  and  another  performs  the  duty  for  him,  even 
against  his  wish  or  directions,  he  may  recover  therefor  from  the 
father,  without  regard  to  any  idea  of  a  contract  in  fact.  There  are 
a  number  of  cases,  and  much  dictum,  in  favor  of  this  view.11  Some 
of  the  cases  cited  in  support  of  the  above  proposition  seem  to'  rec- 
ognize, what  is  held  in  England,  that  there  is  only  a  moral  obliga- 
tion on  the  part  of  the  parent  to  furnish  support,  but  that  this  moral 
obligation  is  sufficient  to  impose  legal  liability  for  necessaries  upon 
the  parent;  but  it  is  not  proper  to  put  the  decision  on  this  ground, 
for  the  general  rule  is  that  a  moral  obligation  will  not  even  sup- 

n2  Kent,  Comm.  190;  Reeve,  Dora.  Rel.  283;  Van  Valkinburgh  v.  Wat- 
son, 33  Johns.  (X.  Y.)  480,  7  Am.  Dec.  395;  Edwards  v.  Davis,  16  Johns. 
(X.  Y.)  285;  In  re  Ryder,  11  Paige  (X.  Y.)  188,  42  Am.  Dec.  109;  Furman  v. 
Van  Si.«e.  56  X.  Y.  435,  15  Am.  Dec.  441;  Manning  v.  Wells,  8  Misc.  Rep.  640, 
29  X.  Y.  Supp.  1044;  Guthrie  County  v.  Conrad,  133  Iowa,  171,  110  X.  W. 
454 ;  Plaster  v.  Plaster,  47  111.  290 ;  Allen  v.  Jacob!,  14  111.  App.  277 ;  Miller 
v.  Davis,.  45  111.  App.  447  (but  see  Hunt  v.  Thompson,  3  Scam.  [111.]  179,  36 
Am.  Dec.  538 ;  McMillen  v.  Lee,  78  111.  443) ;  Owen  v.  White,  5  Port.  (Ala.) 
435,  30  Am.  Dec.  572;  Pretzinger  v.  Pretzinger,  45  Ohio  St.  452,  15  N.  E. 
471.  4  Am.  St.  Rep.  542;  Lufkin  v.  Harvey,  131  Minn.  238,  154  X.  W.  1097, 
L,  R,  A.  1916B,  1111 ;  Snell  v.  Ham  (Tex.  Civ.  App.)  151  S.  W.  1077 ;  Keatou 
v.  Davis,  18  Ga.  457;  Reynolds  v.  Sweetser,  15  Gray  (Mass.)  78;  Dennis  v. 
Clark,  2  Cush.  (Mass.)  347,  352,  48  Am.  Dec.  671;  Weeks  v.  Merrow,  40  Me. 
151 ;  Hillsborough  v.  Deering,  4  N.  H.  86 ;  Pidgin  v.  Cram,  8  X.  H.  352  (but 
see  Kelley  v.  Davis,  49  N.  H.  187,  6  Am.  Rep.  499) ;  Fitter  v.  Fitter,  33  Pa. 
50;  Holtzman  v.  Castleman,  2  MacArthur  (D.  C.)  555;  Maguinay  v.  Saudek, 
5  Sneed  (Tenn.)  147 ;  PORTER  v.  POWELL,  79  Iowa,  151,  44  X.  W.  295,  7  L. 
R.  A.  176,  18  Am.  St.  Rep.  353,  Cooley  Cas.  Persons  and  Domestic  Relations, 
168;  Stanton  v.  Willson,  3  Day  (Conn.)  37,  3  Am.  Dec.  255  (approved  in  Finch 
v.  Finch,  22  Conn.  421) ;  Brans  v.  Pearce,  15  Grat.  (Va.)  513,  78  Am.  Dec. 
635.  See,  also,  Conn  v.  Conn,  57  Ind.  323;  Courtright  v.  Courtright,  40 
Mich.  633;  Buckminster  v.  Buckminster,  38  Vt  252,  88  Am.  Dec.  652; 


116)  PARENT'S  DUTY  TO  MAINTAIN  CHILD  325 


port  an  express  promise.  To  hold  the  parent  liable,  the  courts,  in 
effect,  hold  that  the  obligation  is  a  legal  one.  This  obligation  to 
support  is  not  based  on  the  duty  of  the  child  to  serve,  but  rather 
on  the  inability  of  the  child  to  care  for  itself.  Otherwise,  those  who 
are  unable  to  render  service'  because  of  extreme  infancy,  sickness, 
or  accident  —  those  who  most  of  all,  need  support  —  would  not  be 
entitled  to  it.  The  duty  is  not  merely  to  the  child,  but  also  to  the 
public.12 

The  obligation  thus  imposed  on  the  parent  is  not,  however,  en- 
forceable at  the  suit  of  the  child,  even  in  equity,  in  the  absence  of  a 
statute  giving  the  right.18  But  it  has  been  held  in  California  that 
the  duty  imposed  by  the  provisions  of  the  statute  relating  to  the 
support  of  poor  persons  14  may  be  enforced  in  equity  at  the  suit  of 
the  child.10 

While  the  father  is  primarily  liable  for  the  support  of  his  minor 
children,16  the  mother  will  generally  become  liable  on  the  death  of 
the-father.17  She  will  not  be  held  liable  if  the  child  has  an  estate 
or  income  of  its  own.18  The  widow,  is  not  liable  for  the  support 
of  her  stepchildren,19  and  where  a  widowed  mother  marries  again 
the  stepfather  is  under  no  obligation  to  support  her  children  by  her 
first  husband.20  But  if  he  voluntarily  assumes  the  obligation  of 

Wright  v.  Leupp.  70  N.  J.  Eq.  130,  62  Atl.  464;  Cousins  v.  Boyer,  114 
App.  Div.  787,  100  N.  Y.  Supp.  290;  Holt  v.  Holt,  42  Ark.  495. 

12  PORTER  v.  POWELL,  79  Iowa,  151,  44  N.  W.  295,  7  L.  R.  A.  176,  18  Am. 
St.  Rep.  353,  Cooley  Cas.  Persons  and  Domestic  Relations,  168. 

is  Huke   v.  Huke,  44  Mo.  App.  308. 

i*  Civil  Code,  §  206. 

ispaxton  v.  Paxton,  150  Cal.  667,  89  Pac.  1083. 

i«  PORTER  v.  POWELL,  79  Iowa,  151,  44  N.  W.  295,  7  L.  R.  A.  176,  18  Am. 
St.  Rep.  353,  Cooley  Cas.  Persons  and  Domestic  Relations,  168;  Alvey  v. 
Hartwig,  106  Md.  254,  67  Atl.  132,  11  L.  R,  A.  (N.  .S.)  678,  }4  Ann.  Cas. 
250;  Gilley  v.  Gilley,  79  Me.  292,  9  Atl.  623,  1  Am.  St.  Rep.  307;  Leibold  v. 
Leibold,  J58  Ind.  60,  62  N.  E.  627.  In  some  states  by  statute  the  mother 
must  assist  in  the  support  of  children  if  the  father  is  unable  to  furnish 
adequate  support.  See  Comp.  Laws  N.  D.  1913,  §  4423. 

IT  Girls'  Industrial  Home  v.  Fritchey^  10  Mo.  App.  344;  Missouri  Pac.  Ry. 
Co.  v.  Palmer,  55  Neb.  559,  7Q  N.  W,.  169;,  Finch  v.  Finch,  22  Conn.  411; 
Furman  v.  Van  Sise,  56  N.  Y.  435,  15  Am.  Rep.  441;  Gray  v.  Durland,  50 
Barb.  (N.  Y.)  .100,  and  dissenting  opinion,  page  211. 

isEnglehardt  v.  Yung,  76  Ala.  534;  Mowbry  v.  Mowbry,  64  111.  383;  In 
re  Lyons'  Estate  (Sur.)  137  N.  Y.  Supp.  171  ;  Whipple  v.  Dow,  2  Mass.  415  ; 
Dawes  v.  Howard,  4  Mass.  97  (but  see  Inhabitants  of  Dedham  v.  Inhabitants 
of  Natick,  16  Mass.  135)  ;  In  re  Besondy,  32  Minn.  385,  20  N.  W.  366,  50  Am. 
Rep.  579. 

i»Popejoy  T.  Hydraulic  Press  Brick  Co.,  193  Mo.  App.  612,  186  S.  W.  1133. 

2°Tubb  v.  Harrison,  4  Term  R,  118;   Com.  v.  Hamilton,  6  Mass.  273;    In 


326  DUTIES  AND   LIABILITIES  OF   PARENTS  (Ql.  9 

support,  by  receiving  the  children  into  his  family  and  assuming  to 
stand  in  loco  parentis  to  the  children,  he  is  liable.21  And  generally 
a  person  who  assumes  to  stand  in  loco  parentis  to  a  child  is  subject 
to  the  "legal  responsibilities  flowing  from  the  parental  relation,  and 
is  therefore  liable  for  the  support  of  the  child.22 

The  obligation  on  the  part  of  the  parent  to  maintain  the  child 
continues  until  the  child  is  in  a  condition  to  provide  for  its  own 
maintenance,  and  no  further;  and  in  no  case  does  it  extend  further 
than  to  a  necessary  support.23  The  legal  obligation  ceases,  except 
under  some  of  the  statutes,  as  soon  as  the  child  reaches  the  age  of 
majority,  however  helpless  he  may  be,  and  however  wealthy  the 
father  may  be.24 

Effect  of  Separation  or  Divorce 

Whether  the  liability  of  the  father  to  support  his  children  per- 
sists if  the  parents  are  separated  by  divorce  or  otherwise  depends 
on  the  circumstances  of  the  particular  case.  If  the  father  deserts 
his  family,  the  wife  can  recover  from  him  for  the  support  of  the 
children.25  On  the  other  hand,  if  the  mother  leaves  her  husband 
without  cause,  taking  the  children  with  her,  the  father  is  not  lia- 
ble.26 The  duty  of  the  father  to  support  the  children  is  not  relieved 
merely  because  the  parents  have  separated  by  agreement  and  the 
mother  has  the  custody  of  the  children.27  Though  an  •agreement 

re  Besondy,  32  Minn.  385.  20  X.  W.  366,  50  Am.  Rep.  579;  Bond  v.  Lock- 
wood,  33  111.  212 ;  McMahill  v.  McMahill,  113  111.  461.  But  see  Ela  v.  Brand. 
63  X.  Hi  14. 

21  State  ex  rel.  Deckard  v.  Macom  (Mo.  App.)  186  S.  W.  1157;    Coakley  v. 
Coakley,  216  Mass.  71,  102  N.  E,  930,  Ann.  Cas.  1915A,  867;    White  v.  Mc- 
Dowell, 74  Wash.  44,  132  Pac.  734.     See,  also,  Huber  v.  Roth,  91  Kan.  134, 
136  Pac.  794 ;   Daniel  v.  Tolon,  53  Okl.  666,  157  Pac.  756,  4  A.  L.  R.  704. 

22  In  re  Harris,  16  Ariz.  1,  140  Pac.  825;    Monk  v.  Hurlburt,  151  Wis.  41, 
138  N.  W.  59,  42  L.  R.  A.  (X.  S.)  535;    Howard  v.  Randolph,  134  Ga.  691, 
68  S.  E.  586,  29  L.  R.  A.  (X.  S.)  294.  20  Ann.  Cas.  392. 

232  Kent,  Comm.  190.  When  the  child  is  emancipated,  the  father  is  not 
Jiable.  Holland  v.  Hartley,  171  X.  C.  376,  88  S.  E.  507. 

-*  2  Kent,  Comm.  191 ;  Skidmore  v.  Skidmore,  160  App.  Div.  594,  145  X.  Y. 
Supp.  939 ;  Studebaker  Bros.  Mfg.  Co.  v.  De  Moss,  62  Ind.  App.  635,  113  X.  E. 
417. 

25  De  Brauwere  v.  De  Brauwere,  203  X.  Y.  460,  96  X.  E.  722,  38  L.  R.  A.  (N. 
S.)  508. 

26  Hyde  v.  Leisenring,  107  Mich.  490,  65  X.  W.  536.     But  see  Gilbert  v. 
Gilbert,  149  Ky.  638,  149  S.  W.  964;    White  v.  White,  169  Mo.  App.  40,  154  S. 
W.  S72,  where  the  parties  were  divorced  for  wife's  fault. 

-•  McGarvey's  Guardian  v.  McGarvey's  Adm'r,  163  Ky.  2-12,  173  S.  W.  765; 
Ahrens  v.  Ahrens  (Okl.)  1G9  Pac.  4S6;  Edelson  v.  Edelson,  179  Ky.  300,  200 


§  116)  PARENT'S  DUTY  TO  MAINTAIN  CHILD  327 

as  to  the  custody  and  maintenance  of  children  will  be  enforced  as 
between  the  husband  and  the  wife,  it  cannot  affect  the  paramount 
liability  of  both  imposed  by  statute.28 

Though  in  several  well-considered  cases  it  has  been  held  that 
when  the  care  and  custody  of  the  children  have  been  awarded  to 
the  mother  by  the  decree  of  divorce,  this  carries  with  it  the  obli- 
gation to  support,29  the  better  rule,  according  to  the  weight  of  au- 
thority, is  that  the  liability  of  either  parent  to  support  the  children 
is  not  affected  by  the  decree  of  divorce,30  and  the  liability  of  the 
parent  primarily  liable  for  the  support  of  the  children  continues, 
regardless  of  the  divorce.31  And  even  where  the  custody  of  the 
children  has  been  given  to  the  mother,  her  obligation  to  support  the 
children  is  not  exclusive  of  that  of  the  father,  and  he  remains  liable 
to  her  for  their  maintenance.32  The  duty  to  support  his  children, 

S.  W.  625.  2  A.  L.  R.  689.  But  see  O'Brien  v.  Galley-Stockton  Shoe  Co.  (Colo.) 
173  Pac.  544. 

28  Brice  v.  Brice,  50  Mont.  388,  147  Pac.  164  (construing  Rev.  Codes,  §§ 
3741,  3742). 

28Burritt  v.  Bnrritt,  29  Barb.  (N.  Y.)  124;  Brow  v.  Brightman,  136  Mass. 
187;  Brown  v.  Smith,  19  R.  I.  319,  33  Atl.  466,  30  L.  R.  A.  680;  Finch  v. 
Finch,  22  Conn.  411 ;  Stone  v.  Duffy,  219  Mass.  178,  106  N.  E.  595 ;  and  see 
Bondies  v.  Bondies,  40  Okl.  164,  136  Pac.  1089. 

so  In  re  Application  for  Support  of  Minor  Children,  164  Iowa,  208,  145  N. 
W.  467;  Gibbons  v.  Gibbons,  75  Or.  500,  147  Pac.  530;  Hector  v.  Hector,  51 
Wash.  434,  99  Pac.  13. 

si  Gilley  v.  Gilley,  79  Me.  292,  9  Atl.  623,  1  Am.  St.  Rep.  307;  Rqwell  v 
Rowell,  97  Kan.  16,  154  Pac.  243,  Ann.  Cas.  1918C,  936;  Courtright  v.  Court- 
right,  40  Mich.  633:  Robinson  v.  Robinson,  268  Mo.  703,  186  S.  W.  1032, 
modifying  168  Mo.  App.  639,  154  S.  W.  162 ;  Hector  v.  Hector,  51  Wash.  434, 
'JD  Pac.  13;  Schoennauer  v.  Schoennauer,  77  Wash.  132,  137  Pac.  325; 
Gibbons  v.  Gibbons,  75  Or.  500,  147  Pac.  530;  Thomas  v.  Thomas,  41  Wis. 
229;  Conn  v.  Conn,  57  Ind.  323. 

32Alvey  v.  Hartwig,  106  Md.  254,  67  Atl.  132,  11  L.  R.  A.  (N.  S.)  678, 
14  Ann.  Cas.  250 ;  Spencer  v.  Spencer,  97  Minn.  56,  105  N.  W.  483,  2  L.  R.  A. 
(N.  S.)  851,  114  Am.  St.  Rep.  695,  7  Ann.  Cas.  901;  Evans  v.  Evans,  125 
Tenn.  112,  140  S.  W.  745,  Ann.  Cas.  1913C,  294;  Sanders  v.  Sanders,  167  N. 
C.  319,  83  N.  E.  490;  Stanton  v.  Willson,  3  Day  (Conn.)  37,  3  Am.  Dec.  255 
(but  see  Finch  v.  Finch,  22  Conn.  411) ;  Thomas  v.  Thomas,  41  Wis.  229 ; 
Conn  v.  Conn,  57  Ind.  323 ;  Spade  v.  State,  44  Ind.  App.  529,  89  N.  E.  604 ; 
White  v.  White  (Mo.  App.)  180  S.  W.  1004;  Graham  v.  Graham,  38  Colo, 
453,  88  Pac.  852,  8  L.  R.  A.  (N.  S.)  1270,  12  Ann.  Cas.  137 ;  Rogers  v.  Rogers, 
93  Kan.  114,  143  Pac.  410,  L.  R.  A.  1917A,  1137;  La  Rue  v.  Kempf,  186  Mo. 
App.  57,  121  S.  W.  588;  Kinney  v.  Kinney,  150  Iowa,  225,  129  N.  W,  826; 
White  v.  White,  154  App.  Div.  250,  138  N.  Y.  Supp.  1082 ;  Hall  v.  Hall,  141 
Ga.  361,  80  S.  E.  992;  Riggs  v.  Riggs,  91  Kan.  593,  138  Pac.  628,  Ann.  Cas. 
1915D,  809:  Wills  v.  Wills.  168  Ky.  35,  181  S.  W.  619;  Hector  v.  Hector, 
51  Wash.  434,  99  Pac.  13.  In  Ramsey  v.  Ramsey,  121  Ind.  215,  23  N.  E.  C9, 


328  DUTIES  AND   LIABILITIES  OF  PARENTS  (Ch.  9 

said  the  Ohio  court,  "is  not  to  be  evaded  by  the  husband  so  con- 
ducting himself  as  to  render  it  necessary  to  dissolve  the  bonds  of 
matrimony,  and  give  to  the  mother  the  custody  and  care  of  the  in- 
fant offspring.  It  is  not  the  policy  of  the  law  to  deprive  children 
of  their  rights  on  account  of  the  dissensions  of  their  parents,  to 
which  they  are  not  parties,  or  to  enable  the  father  to  convert  his 
own  misconduct  into  a  shield  against  parental  liability.  The  di- 
vorce may  deprive  him  of  the  custody  and  the  services  of  his  chil- 
dren, and  of  the  rights  of  guardianship,  against  his  will ;  but  if,  by 
the  judgment  of  the  court,  and  upon  competent  and  sufficient  evi- 
dence, he  is  found  to  be  an  unfit  person  to  exercise  parental  control, 
while  the  mother  is  in  all  respects  the  proper  person  to  be  clothed 
with  such  authority,  he  cannot  justly  complain.  The  alimony  al- 
lowed by  the  court  below  is  not  to  be  construed  into  an  allowance 
for  the  support  also  of  the  child.  'Alimony,'  in  its  proper  signifi- 
cance, is  not  maintenance  to  the  children,  but  to  the  wife ;  and  the 
fact  that  there  has  been  a  judgment  of  divorce,  with  alimony  and 
custody  of  minor  children  to  the  wife,  will  not  of  itself  operate  as 
a  bar  to  a  subsequent  claim  against  the  husband  for  the  children's 
maintenance."  "  It  has  also  been  held  that  even  the  remarriage  of 
the  mother  after  the  divorce  does  not  release  the  father  from  his  ob- 
ligation.84 

Neglect  to  Support  as  an  Offense 

In  many  states,  by  statute,  it  is  made  a  penal  offense  for  a  parent 
to  abandon  his  minor  children,  or  neglect  to  support  them.85  Such 

6  L.  R.  A.  682,  It  was  held  in  a  poorly  reasoned  opinion  that  where  a  child 
was  born  after  the  divorce  the  father  was  not  liable  for  its  support;  the 
child  being  in  the  custody  of  the  mother. 

sspretzinger  v.  Pretzinger,  45  Ohio  St  452,  15  N.  B.  471,  4  Am.  St.  Rep. 
542.  And  see  Holt  v.  Holt,  42  Ark.  495. 

a*  Maxwell  v.  Boyd,  123  Mo.  App.  334,  100  S.  W.  540;  Johnson  v.  Latty 
(D.  C.)  210  Fed.  061;  White  y.  McDowell,  74  Wash.  44,  132  Pac.  734. 

35  State  v.  Beers,  77  Conn.  714,  58  Atl.  745;  Baldwin  v.  State,  118  Ga.  328, 
45  S.  E.  399 ;  Mays  v.  State,  123  Ga.  507,  51  S.  E.  503 ;  Brown  v.  State.  122 
Ga.  568,  50  S.  E.  378 ;  State  v.  Sanner,  81  Ohio  St.  393,  90  X.  E.  1007,  26  L.  R. 
A.  (X.  S.)  1093 :  State  v.  Gipson,  92  Wash.  646,  159  Pac.  792 ;  Martin  v.  Peo- 
ple. 60  Colo.  575,  155  Pac.  318;  Moore  v.  State,  1  Ga.  App.  502,  57  S. 
R  1016;  State  v.  Sparegrove,  134  Iowa,  599,  112  N.  W.  83 ;%  State  v. 
Block  (Mo.  App.)  82  S.  W.  1103;  State  v.  Peabody,  25  R,  I.  544,  56  Atl. 
1028.  And  see  People  v.  Chamberlain  (Sup.)  106  N.  Y.  Supp.  149,  hold- 
ing that  since,  under  Code  Cr.  Proc.  §  839,  the  mother  of  a  bastard  child 
is  liable  for  its  support  if  able  to  support  it,  she  may  be  prosecuted  for 
abandonment  if  she  wrongfully  neglects  to  do  so.  Under  the  New  York  stat- 
ute (Penal  Law  [Consol.  Laws,  c.  40]  §  480),  declaring  it  a  felony  for  a 


§  117)  MAINTENANCE   OUT   OF   CHILD'S  ESTATE  329 

statutes  are  a  proper  exercise  of  the  police  power  of  the  state.8* 
Being  highly  penal  in  their  nature,  the  statutes  should  be  strictly 
construed.87  So  it  has  been  held  that  to  render  the  parent  liable  the 
child  must  be  actually  in  need  and  he  is  not  liable  if  the  child  is  re- 
ceiving necessary  food,  etc.38  Moreover,  the  parent  is  liable  only 
when  he  withholds  necessaries  which  he  is  able  to  supply,39  and  a 
failure  to  furnish  support  will  be  excused  if  the  parent  is  unable  to 
furnish  it  and  his  inability  is  not  due  to  his  extravagance  or  mis- 
conduct.40 Abandonment  as  a  criminal  offense  under  these  statutes 
contains  two  essential  ingredients,  separation  from  child  and  neg- 
lect to  provide  for  its  needs.  Mere  absence  from  the  child  is  not 
sufficient.41 
! 

MAINTENANCE  IN  EQUITY— ALLOWANCE  OUT  OF  ' 
CHILD'S  ESTATE 

117.  When  a  parent  is  unable  to  support  his  child,  and  the  child 
has  property,  equity  will  make  allowances  therefrom  for 
his  future  or  past  maintenance.  An  allowance  will  not  be 
granted  if  the  parent  is  able  to  support  his  child,  except 
where  the  child's  fortune  exceeds  the  parent's,  when  it 
may  be  maintained  according  to  its  fortune. 

Where  a  father  has  not  sufficient  means  to  support  his  child,  and 
the  child  has  property  of  its  own,  it  may  be  not  only  maintained, 

parent  to  abandon  his  child,  the  father  of  an  illegitimate,  who  never  had  cus- 
tody of  the  child,  is  not  liable.  People  v.  Fitzgerald,  167  App.  Div.  85,  152 
N.  Y.  Supp.  641.  Where  one  married  the  mother  of  an  illegitimate  child, 
his  failure  to  support  the  child,  though  he  had  promised  to  do  so,  does  not 
render  him  liable  under  the  statute,  unless  he  was  the  father  of  the  child. 
People  v.  Connell,  151  App.  Div.  943,  136  N.  Y.  Supp.  912.  One  who  fails 
to  comply  with  a  divorce  decree  requiring  him  to  support  his  child  is  liable 
under  the  statute  for  neglect  to  provide.  People  v.  Schlott,  162  Cal.  347,  122 
Pac.  846. 

36  Ex  parte  Mitchell,  19  Cal.  App.  567,  126  Pac.  856. 

37  Goetting  v.  Normoyle,  191  N.  Y.  368,  84  N.  E.  287,  affirming  119  App.  Div. 
143,  103  N.  Y.  Supp.  881. 

ss  State  v.  Thornton,  232  Mo.  298,  134  S.  Wl  519,  32  L.  R,  A.  (N.  S.)  841. 
But  see  State  v.  Langford,  90  Or.  251,  176  Pac.  197,  holding  that  proof  of 
entire  failure  to  supfwrt  is  not  essential  and  that  it  is  sufficient  to  show 
neglect  to  furnish  adequate  support. 

ssRaborn  v.  State,  71  Fla.  387,  72  South.  463.  Failure  to  supply  "neces- 
sary food,"  etc.,  construed.  State  v.  Shouse,  268  Mo.  199,  186  S.  W.  1064. 

40  People  v.  Forester,  29  Cal.  App.  460,  155  Pac.  1022. 

41  Phelps  v.  State,  10  Ga.  App.  41,  72  S.  E.  524. 


330  DUTIES  AND   LIABILITIES  OF  PARENTS  (Ch.  9 

but  educated,  from  the  income  of  such  property ;  and  the  court  in 
the  exercise  of  its  equity  powers  will  order  such  allowances  as  may 
be  necessary.42  In  an  urgent  case  the  court  may  use  the  principal 
of  a  fund  or  other  property  belonging  to  a  child  to  maintain  and  edu- 
cate him.48  As  a  general  rule,  however,  if  the  father  is  amply  able 
to  support  and  educate  his  child,  no  allowance  will  be  made  out  of 
the  child's  property,44  unless  the  child's  fortune  is  in  excess  of  that 
of  the  parent.45  It  is  only  in  exceptional  cases  that  he  is  entitled  to 
resort  to  the  child's  estate.48 

It  is  obviously  to  the  best  interests  of  the  child  that  he  be  main- 
tained and  educated  in  such  a  manner  as  to  fit  it  to  fill  the  position 
in  life  to  which  its  future  will  entitle  it.  And  it  has  therefore  been 
held  that,  when  the  child's  fortune  warrants  a  scale  of  expenditure 
beyond  what  the  parent's  fortune  will  permit,  a  court  of  equity  will 
make  allowances  therefrom,  in  accordance  with  the  fortune,  for  his 
maintenance  and  education.47  "What  allowance,  if  any,  shall  be 
made  to  a  father  out  of  his  children's  property,  for  their  mainte- 
nance, is  a  broad  question  of  equity.  The  circumstances  of  each 
case,  including  the  respective  estates  of  father  and  child,  are  con- 
sidered, and  the  decision  is  a  just  and  reasonable  conclusion  of  fact, 
with  due  regard  for  the  general  rule  of  parental  duty."  ^8 

4»2  Kent,  Comm.  191;  3  Pom.  Eq.  Jur.  §  1309,  note  4;  Fuller  v.  Fuller, 
23  Fla.  236,  2  South.  426 ;  Commonwealth  v.  Lee,  120  Ky.  433,  86  S.  W.  990, 
judgment  modified  on  rehearing  120  Ky.  433,  89  S.  W.  731;  Beardsley  v. 
Hotchkiss,  96  N.  Y.  201,  219;  Newport  v.  Cook,  2  Ashm.  (Pa.)  332;  Cooley 
v.  Stringfellow,  164  Ala.  460,  51  South.  321;  Williams  v.  Williams,  202  Ala. 
539,  81  South.  41;  Evans  v.  Pearce,  15  Grat.  (Va.)  513,  78  Am.  Dec.  635; 
Funk's  Guardian  v.  Funk,  130  Ky.  354,  113  S.  W.  419;  First  Nat  Bank  v. 
Greene  (Ky.)  114,  S.  W.  322;  Gaston  v.  Thompson,  129  Ga.  754,  59  S.  E.  799; 
Peters  v.  Scoble,  28  Ohio  Cir.  Ct.  R.  541,  affirmed  76  Ohio  St.  564,  81  N.  E.  1193. 

*s  Newport  v.  Cook,  2  Ashm.  (Pa.)  332. 

44  United  States  Fidelity  &  Guaranty  Co.  v.  Hall  (Tex.  Civ.  App.)  173  S. 
W.  892. 

45  Butler  v.  Butler,  3  Atk.  58;    Darley  v.  Darley,  Id.  399;    Wellesley  v. 
Duke  of  Beaufort,  2  Russ.  3,  28;    Cruger  v.  Heyward,  2  Desaus.  1.8.  C.)  94; 
In  re  Kane,  2  Barb.  Ch.  (N.  Y.)  375;  Chapline  v.  Moore,  7  T.  B.  Mon.  (Ky.)  150; 
Tanner  v.  Skinner,  11  Bush  (Ky.)  120;    In  re  Harland,  5  Rawle  (Pa.)  323; 
Ela  v.  Brand,  63  N.  H.  14;    Hamilton's  Adm'r  v.  Riney,  140  Ky.  476,  131  S. 
W.  287 ;    In  re  Jeffrey's  Estate  (Sur.)  137  N.  Y.  Supp.  168 ;   Buckley's  Adm'r 
v.  Howard,  35  Tex.  566;    Kinsey  v.  State.  98  Ind.  3^1;    Bines'  v.  Mullins, 
25  Ga.  696;    Burke  v.  Turner,  85  N.  C.  500. 

4«  In  re  Harris,  16  Ariz.  1,  140  Pac.  825,  Ann.  Cas.  1916A,  1175. 

4f  2  Kent,  Comm.  191 ;   Jervoise  v.  Silk,  Coop.  t.  Eld.  52 ;   Roach  v.  Garvan. 

48  Ela  v.  Brand,  63  N.  H.  14. 


§  118)  CONTRACTS   BY   CHILD   AS  PARENT'S   AGENT  331 

An  allowance  may  also  be  made  for  past  maintenance  and  educa- 
tion, when  the  extent  of  the  respective  estates  of  the  parent  and 
child,  and  the  particulars  of  the  expenditures,  render  an  allowance 
equitable  and  just.49  Th*e  mother  is  shown  special  favor  in  allow- 
ances for  past  maintenance  and  expenditures  for  education,  and 
the  courts  will  grant  them  in  her  case  without  so  strict  a  showing 
as  might  be  required  of  the  father.50 


CONTRACTS  BY  CHILD  AS  PARENT'S  AGENT 

118.  A  child,  if  expressly  or  impliedly  authorized,  may  act  as  his 
parent's  agent,  and  bind  him  by  a  purchase  of  goods,  or  by 
any  other  contract.  If  the  parent  holds  the  child  out  as 
having  authority,  he  constitutes  him  his  agent  by  estoppel. 

If  a  child  is  authorized,  he  may  act  as  agent  for  his  parent,  and 
may  bind  him  to  pay  for  necessaries  purchased,51  or  by  any  other 
contract ;  and  if  the  parent  authorizes  the  child  to  purchase  goods 
on  his  credit  he  is  liable,  though  the  seller  did  not  know  of  the  au- 
thorization, and  though  the  goods  purchased  were  necessaries  or 
not.52  This  depends,  not  upon  any  principle  peculiar  to  the  rela- 
tion of  parent  and  child,  but  on  principles  of  the  law  of  agency. 
The  relation,  however,  will  enable  the  court  to  infer  authority  from 
slight  evidence,53  and  if  from  the  circumstances  surrounding  the 
transaction  the  seller  of  goods  is  justified  in  assuming  that  author- 

1  Ves.  Sr.  157;  In  re  Burke,  4  Sandf.  Ch.  (N.  Y.)  617;  Trimble  v.  Dodd,  2 
Tenn.  Ch.  500;  Ela  v.  Brand,  63  N.  H.  14;  Evans  v.  Pearce,  15  Grat.  (Va.) 
513,  78  Am.  Dec.  635.  But  see  McKnight's  Ex'rs  v.  Walsh,  23  N.  J.  Eq.  139. 

4  9  Brown  v.  Smith,  10  Ch.  Div.  377;  In  re  Kane,  2  Barb.  Ch.  (N.  Y.)  375; 
Smith  v.  Geortner,  40  How.  Prac.  (N.  Y.)  185;  Beardsley  v.  Hotchkiss,  96 
N.  Y.  201;  Otte  v.  Becton,  55  Mo.  99;  Myers  v.  Myers,  2  McCord,  Eq.  (S. 
C.)  214,  16  Am.  Dec.  648 ;  Trimble  v.  Dodd,  2  Tenn.  Ch.  500 ;  Ailing  v.  Ailing, 
52  N.  J.  Eq.  92,  27  Atl.  655. 

so  in  re  Besondy,  32  Minn.  385,  20  N.  W.  366,  50  Am.  Kep.  579;  Stewart 
v.  Lewis,  16  Ala.  734 ;  Englehardt  v.  Yung,  76  Ala.  534 ;  Mowbry  v.  Mowbry, 
64  111. -383;  Gladding  v.  Follett,  2  Dem.  Sur.  (N.  Y.)  58;  Whipple  v.  Dow,  2 
Mass.  415 ;  Pyatt  v.  Pyatt,  46  N.  J.  Eq.  285,  18  Atl.  1048 ;  Ailing  v.  Ailing, 
52  N.  J.  Eq.  92,  27  Atl.  655. 

5i  Finn  v.  Adams,  138  Mich.  258,  101  N.  W.  533,  4  Ann.  Gas.  1186. 

sz  Anderson  v.  Lunker,  180  Iowa,  167,  162  N.  W.  7. 

5 s  Freeman  v.  Robinson,  38  N.  J.  Law,  383,  20  Am.  Rep.  399;  Jordan  v. 
Wright,  45  Ark.  237.  See,  as  to  sufficiency  of  evidence,  Cousins  v.  Boyer, 
114  App.  Div.  787,  100  N.  Y.  Supp.  290. 


332  DUTIES  AND  LIABILITIES  OF  PARENTS  (Ch.  9 

ity  was  given,  the  parent  may  be  held  liable.6*  The  authority  of  the 
child  will  be  implied  when  the  parent,  with  knowledge  and  without 
objection,  allows  the  child  to  make  purchases  on  credit,58  and  es- 
pecially will  the  authority  be  implied  if  the  parent  has  been  in  the 
habit  of  paying  the  child's  bills  without  objection.56  "Where  the 
father  permits  his  minor  child  to  purchase  goods  on  his  account, 
whether  for  himself  or  for  the  father,  and  he  pays  for  them  without 
objection,  it  is  a  reasonable  presumption  that  the  minor  had  author- 
ity, and  was  the  agent  of  the  father,  having  full  power  to  make  such 
purchases.  The  proof  of  such  authority  is  the  same  as  the  agency 
of  the  wife  or  a  servant.  The  circumstances  which  authorize  the  in- 
ference of  authority  in  the  one  case  will  be  sufficient  in  either  of  the 
others ;  in  each  the  question  being  whether  there  was  authority  to 
act  as  agent.  When  the  agency  is  found  to  exist,  the  law  then  im- 
plies a  promise,  as  in  the  case  of  any  other  agency."  5T  The  father 
who  allows  his  child  to  purchase  goods  on  his  credit,  and  pays  the 
bills  without  objection,  cannot  be  heard  to  deny  the  child's  agency. 
There  is  a  clear  case  of  agency  by  estoppel,  for  the  father  thus  holds 
out  the  child  as  having  authority  to  bind  him. 

If  the  parent  refuses  to  furnish  his  child  with  necessaries,  he  may 
nevertheless  be  charged  therefor  on  the  principles  of  agency;59 
and  if  a  third  person  purchases  necessaries  for  the  child,  the  parent 

a*  Auringer  v.  Cochrane,  225  Mass.  273,  114  N.  E.  355. 

BS  Martz  v.  Fullhart,  142  Mo.  App.  348,  126  S.  W.  964.  A  mother  living 
with  the  father  is  not  liable  for  necessaries  in  the  absence  of  an  express  as- 
sumption of  liability.  Leake  v.  J.  R.  King  Dry  Goods  Co.,  5  Ga.  App.  102, 
62  S.  E.  729. 

oe  Thayer  v.  White,  12  Mete.  (Mass.)  343 ;  Fowlkes  v.  Baker,  29  Tex.  135, 
94  Am.  Dec.  270;  Bryan  v.  Jackson,  4  Conn.  288;  Murphy  v.  Ottenheimer, 
84  111.  39,  25  Am.  Rep.  424;  Armstrong  Clothing  Co.  v.  Boggs,  90  Neb.  499, 
133  N.  W.  1122,  Ann.  Cas.  1913A,  966;  Johnson  v.  Smallwood,  88  111.  73; 
Manning  v.  Wells,  8  Misc.  Rep.  646,  29  N.  Y.  Supp.  1044.  The  payment  of  one 
account  without  protest  does  not  render  the  parent  liable  for  subsequent 
purchases  made  by  the  child  unless  the  purchases  were  necessaries.  A.  Al- 
schuler  &  Sons  v.  Anderson,  142  111.  App.  323. 

67  Murphy  v.  Ottenheimer,  84  111.  39,  25  Am.  Rep.  424;  McCRADY  v. 
PRATT,  138  Mich.  203,  101  N.  W.  227,  Cooley  Cas.  Persons  and  Domestic  Re- 
lations, 172. 

ssLoucks  v.  Dutcher  (Co.  Ct.)  112  N.  Y.  Supp.  269;  Snell  v.  Ham  (Tex. 
Civ.  App.)  151  S.  W.  1077;  PORTER  v.  POWELL,  79  Iowa,  151,  44  N.  W.  295, 
7  L.  R.  A.  176,  18  Am.  St.  Rep.  353,  Cooley  Cas.  Persons  and  Domestic  Rela- 
tions, 168.  But  the  father  is  not  liable  if  there  has  been  no  neglect  or  re- 
fusal in  the  absence  of  authorization.  Smith  v.  Gilbert,  80  Ark.  525,  98  S. 
W.  115,  8  L.  R.  A.  (N.  S.)  1098. 


§  119)  PARENT'S  DUTY  TO  PROTECT  CHILD  333 

is  liable,  but  only  to  the  extent  of  the  sums  actually  paid  out  and 
reasonably  necessary.09  So,  too,  if  the  parent  compels  the  child  to 
leave  home  through  fear  of  violence  or  other  adequate  cause,  he  will 
still  be  liable  for  necessaries.60  On  the  other  hand,  the  father  can- 
not be  held  liable,  even  for  necessaries,  on  the  theory  of  agency 
if  he  has  emancipated  the  child ; 61  and,  of  course,  if  the  child 
leaves  home  on  his  own  account,  to  seek  his  fortune  or  to  avoid 
discipline,  he  does  not  carry  with  him  the  parent's  credit.62 

The  necessaries  for  the  furnishing  of  which  the  parent  may  be 
held  liable  on  the  theory  of  agency,  include  food,  clothing,  resi- 
dence, instruction,  and  medical  services.63 

In  all  cases  of  implied  agency,  if  the  credit  is  given  to  the  child, 
and  not  to  the  parent;  the  latter  does  not  become  liable,64  for  his 
liability  is  based  on  the  theory  that  the  child  has  contracted,  not 
for  himself,  but  as  agent  for  his  parent;  that  he  has  pledged  his 
parent's,  and  not  -his  own,  credit. 

PARENT'S  DUTY  TO  PROTECT  CHILD 

119.  The  law  recognizes  the  duty  of  a  parent  to  protect  his  child, 
and  will  uphold  him  therein. 

The  duty  of  a  parent  to  protect  his  child  is  fully  recognized  by 
the  common  law ;  but,  as  was  said  by  Blackstone,  it  is  "rather  per- 

o»  Cheever  v.  Kelly,  96  Kan.  269,  150  Pac.  529. 

so  Brosius  v.  Barker,  154  Mo.  App.  657,  136  S.  W.  18;  Hunycutt  v.  Thomp- 
son, 159  N.  C.  29,  74  S.  E.  628,  40  L.  R.  A.  (N.  S.)  488,  Ann.  Gas.  1913E,  928 ; 
Stanton  v.  Willson,  3  Day  (Conn.)  37,  3  Am.  Dec.  255;  Owen,  v.  White,  5 
Port.  (Ala.)  435,  30  Am.  Dec.  572  (dictum). 

si  Holland  v.  Hartley,  171  N.  C.  376,  88  S.  B.  507. 

62  Dyer  v.  Helson,  117  Me.  203,  103  Atl.  161 ;  Brosius  v.  Parker,  54  Mo. 
App.  657,  136  S.  W.  18;  Hyde  v.  Leisenring,  107  Mich.  490,  65  N.  W.  536. 
But  see  Bradley  v.  Keen,  101  111.  App.  519,  where  the  child  was  only  eight 
or  nine  years  old.  Where  a  minor  was  away  attending  school  against  the 
wishes  of  the  father,  he  had  no  authority  to  pledge  the  father's  credit  even 
for  medical  services.  Sassaman  v..  Wells,  178  Mich.  167,  144  N.  W.  478. 

es  Gately  Outfitting  Co.  v.  Vinson  (Mo.  App.)  182  S.  W.  133;  Des  Mond  v. 
Kelly,  163  Mo.  App.  205,  146  S.  W.  99 ;  Simoneau  v.  Pacific  Electric  Ry.  Co., 
159  Cal.  494,  115  Pac.  320;  Howell  v.  Blesh,  19  Okl.  260,  91  Pac.  893.  Also 
funeral  expenses.  P.  J.  Hunycutt  &  Co.  v.  Thompson,  1591  N.  C.  29,  74  S. 
E.  628,  40  L.  R.  A.  (N.  S.)  488,  Ann.  Gas.  1913E,  928 ;  Gobber  v.  Empting,  72 
Misc.  Rep.  10,  129  N.  Y.  Supp.  4.  Proper  articles  of  clothing  to  be  worn  at 
the  funeral  of  the  child's  mother  are  also  necessaries.  Bisbee  v.  McMauus, 
229  Mass.  124,  118  N.  E.  192. 

e*  Varney  v.  Young,  11  Vt.  258. 


334  DUTIES  AND  LIABILITIES  OF  PARENTS  (Ch.  9 

mitted  than  enjoined  by  any  municipal  law;  nature  in  this  respect 
working  so  strongly  as  to  need  rather  a  check  than  a  spur."  6B  A 
parent  may  justify  an  assault  and  battery,  or  even  a  homicide,  in 
the  necessary  defense  of  the  person  of  his  child.66  And  he  could 
maintain  and  uphold  his  children  in  their  lawsuits  without  being 
guilty  of  the  common-law  offense  of  maintenance.87 

PARENT'S  DUTY  TO  EDUCATE  CHILD 

120.  Parents  are  not  under  any  legal  duty  to  educate  their  children. 

It  is  sometimes  said  by  text-writers  that  it  is  the  duty  of  a 
parent  to  give  his  children  an  education  suitable  to  their  station 
in  life,68  and  there  are  dicta  in  many  cases  to  the  same  effect.69 
This  duty,  however,  is  only  a  moral  one.  There  is  no  legal  duty 
on  the  part  of  a  parent  to  educate  his  children,  however  wealthy  he 
may  be.  At  least,  there  seems  to  be  no  case  in  which  such  a  duty 
has  been  enforced,  either  directly  or  indirectly.  Education  is  not 
necessary  to  the  subsistence  of  a  child,  and  the  reasons  which 
should,  and  in  some  states  do,  render  a  parent  legally  bound  to  sup- 
port his  child  do  not  apply. 

PARENT'S  LIABILITY  FOR  CHILD'S  TORTS 

121.  A  parent  is  not  liable,  because  of  the  relation,  for  the  torts  of 

his  child ;  but  he  may  be  liable  for  torts  committed  as  his 
agent  or  servant,  or  with  his  knowledge  and  acquiescence. 

Unlike  the  status  of  husband  and  wife,  where  the  law  makes  the 
husband  liable  for  his  wife's  torts,70  the  status  of  parent  and  child 

°s  1  Bl.  Comm.  450.  A  parent  is  bound  by  positive  law  to  protect  his 
child.  ROUNDS  BROS.  v.  McDANIEL,  133  Ky.  699,  118  S.  W.  956,  134  Am.  St. 
Kep.  482,  19  Ann.  Cas.  326,  Cooley  Cas.  Persons  and  Domestic  Relations,  193. 

««1  Bl.  Comm.  450;    1  Hawk.  P.  C.  131.     • 

67 1  Bl.  Comm.  450.  But  it  is  not  the  legal  duty  of  a  parent  to  engage 
counsel  to  defend  his  child.  Hill  v.  Childress,  10  Yerg.  (Tenn.)  514. 

OB  1  Bl.  Comm.  150;  2  Kent,  Comm.  189. 

«»  Morse  v.  Welton,  6  Conn.  547,  16  Am.  Dec.  73;  Abbott  v.  Converse,  4 
Allen  (Mass.)  533 ;  Lord  v.  Poor,  23  Me.  569 :  In  re  Putney,  61  Misc.  Rep.  1, 
114  N.  Y.  Supp.  556 ;  ROUNDS  BROS.  v.  McDANIEL,  133  Ky.  669,  118  S.  W. 
y^G,  134  Am.  St.  Rep.  482,  19  Ann.  Cas.  326,  Cooley  Cas.  Persons  and  Do- 
mestic Relations,  193;  Johnson  v.  Terry,  34  Conn.  259.  See,  also,  In  re 

TO  Ante,  p.  05. 


§  121)  PARENT'S  LIABILITY  FOR  CHILD'S  TORTS  335 

imposes  no  liability  on  the  parent  for  the  torts  of  his  child  not 
committed  with  his  knowledge,  nor  by  his  authority,  express  or 
implied.71  There  was  such  a  liability  under  the  civil  law,  but  it 
never  was  recognized  by  the  common  law.  If  the  parent  authorizes 
the  child  to  act  as  his  servant  or  agent  in  any  matter,  he  will  be  lia- 
ble for  any  torts  committed  by  the  child  in  the  course  of  this  em- 
ployment.72 This  liability  does  not  depend  upon  the  relationship 
of  the  parties  as  parent  and  child,  but  upon  their  relationship  as 
principal  and  agent,  and  is  governed  by  the  rules  governing  other 
cases  of  agency.  "A  father  is  never  liable  for  the  wrongful  acts 
of  his  minor  son,  unless  the  acts  are  committed  with  the  father's 
consent,  or  in  connection  with  the  father's  business."  73 

Guertin's  Child,  5  Alaska,  1;  Brewer  v.  Cary,  148  Mo.  App.  193,  127  S.  W. 
685. 

71  Moon  v.  Towers,  8  C.  B.  (N.  S.)  611;   Palm  v.  Ivorson,  117  111.  App.  535; 
Maher  v.  Benedict,  123  App.  Div.  579,  108  N.  Y.   Supp.  228;    Chastain  v. 
Johns,  120  Ga.  977,  48  S.  E.  343,  66  L.  R.  A.  958;    Miller  v.  Meche,  111  La. 
143,  35  South.  491;    Tifft  v.  Tifft,  4  Denio  (N.  Y.)  175;    Paulin  v.  Howser, 
63  111.  312;    Wilson  v.  Garrard,  59  111.  51;    Schlossberg  v.  Lahr,  6Q  How. 
Prac.  (N.  Y.)  450;    Brohl  v.  Lingeman,  41  Mich.  711,  3  N.  W.  199;   Baker  v, 
Haldeman,  24  Mo.  219,  69  Am.  Dec.  430;    Paul  v.  Hummel,  43  Mo.  119,  97 
Am.  Dec.  381;    Chandler  v.  Deaton,  37  Tex.  406;    Edwards  v.  Crume,   13 
Kan.  348;    Smith  v.  Davenport,  45  Kan.  423,  25  Pac.  851,  11  L.  R.  A.  429, 
23  Am.  St.  Rep.  737 ;    McCauley  v.  Wood,  2  N.  J.  Law,  86 ;    Scott  v.  Watson, 
46  Me.  362,  74  Am.  Dec.  457;    Shockley  v.  Shepherd,  9  Houst.  (Del.)  270,  32 
Atl.  173;    McCarthy  v.  Heiselman,  140  App.  Div.  240,  125  N.  Y.   Supp.  13; 
Fanton  v.  Byrum,  26  S.  D.  366,  128  N.  W.  325,  34  L.  R.  A.  (N.  S.)  501; 
BRITTINGHAM  v.  STADIEM,  151  N.  C.  299,  66  S.  E.  128,  Cooley  Gas.  Persons 
and  Domestic  Relations,  177 ;   LESSOFF  v.  GORDON,  58  Tex.  Civ.  App.  213, 
124  S.  W.  182,  Cooley  Cas.  Persons  and  Domestic  Relations,  174;    Winn  v. 
Holliday,  109  Miss.  691,  69  South.  685;    Birch  v.  Abercrombie,  74  Wash.  486, 
133  Pac.  1020,  50  L.  R.  A.   (N.  S.)   59,  modified  on  rehearing  135  Pac.  821; 
Parker  v.  Wilson,  179  Ala.  361,  60  South.  150,  43  L.  R.  A.  (N.  S.)  87.    A  parent 
is  not  liable  for  the  tort  of  his  child  committed  while  in  play.    Schumer  v.  Reg- 
ister, 12  Ga.  App.  743,  78  S.  E.  731. 

72  Teagarden  v.  McLaughlin,  86  Ind.  476,  44  Am.  Rep.  332;    Strohl  v.  Lev- 
an,  39  Pa.  177;    Lashbrook  v.  Patten,  1  Duv.  (Ky.)  317;    Beedy  v.  Reding, 
16  Me.  362;    Dunks  v.  Grey  (C.  C.)  3  Fed.  862.     In  Strohl  v.  Levan,  supra, 
a  father  was  held  liable  in  trespass  for  an  injury  inflicted  by  his  son  while 
driving  the  father's  team,  the  father  being  present  in  the  wagon  at  the 
time. 

73  Smith  v.  Davenport,  45  Kan.  423,  25  Pac.  851,  11  L.  R,  A.  429,  23  Am. 
St.  Rep.  737.     See,  also,  Lemke  v.  Ady  (Iowa)  159  N.  W.  1011.     In  Tifft  v. 
Tifft,  4  Denio  (N.  Y.)  175,  an  action  was  brought  against  a  man  for  the  kill- 
ing of  a  hog  by  a  dog,  on  the  ground  that  the  dog  was  set  on  by  the  defend- 
ant's minor  daughter.     In   Baker  v.  Haldeman,  24  Mo.  219,   69  Am.  Dec. 
430,  and  other  cases,  supra,  the  father  was  sued  for  an  assault  committed  by 
his  child.    In  neither  case  was  the  tort  committed  with  the  father's  consent, 


336  DUTIES  AND  LIABILITIES  OF  PARENTS  (Ch.  9 

In  accordance  with  these  principles,  it  has  been  held  that  the 
owner  of  an  automobile  is  not  liable  for  the  negligent  acts  of  his 
son  while  driving  the  car,  unless  the  son  was  acting  as  the  father's 
agent  or  in  his  service,  express  or  implied. T*  He  will  not  be  liable 
where  the  son  is  using  the  car  solely  for  his  own  purposes.75 
There  is  a  difference  of  opinion  on  the  question  whether  the  liabil- 
ity of  the  father  will  attach  if  the  son  has  been  given  permission  to 
use  the  car.  In  some  cases  it  has  been  held  that  the  mere  fact  that 
the  son,  using  the  car  for  his  own  purposes,  is  doing  so  with  the 
father's  permission,  does  not  make  the  father  liable.78  While  in 
other  cases  the  father  has  been  held  liable  apparently  on  the  ground 
that  the  son  was  using  the  car  with  his  father's  permission.77  The 
theory  in  some  cas.es  seems  to  be  that  where  the  father  has  furnish- 
ed an  automobile  as  the  customary  conveyance  of  his  family,  the 
son,  though  driving  for  his  own  pleasure,  is  nevertheless  engaged  in 
the  business  of  the  father.78  And  it  is  generally  held  that,  where 


and  he  was  held  not  liable.  On  the  other  hand,  In  Teagarden  v.  McLaughlin, 
86  Ind.  476,  44  Am.  Rep.  332,  where  a  minor  son  had  contracted  with  his 
father  to  clear  a  parcel  of  land,  and  in  doing  so  negligently  burned  the 
property  of  a  third  person,  the  father  was  held  liable,  not  because  he  was 
the  parent  of  the  wrongdoer,  but  because  the  wrongdoer  was  acting  in  his 
employment.  In  LESSOFF  v.  GORDON,  58  Tex.  Civ.  App.  213,  124  S.  W.  182, 
Cooley  Gas.  Persons  and  Domestic  Relations,  174,  a  child,  in  the  absence  of 
the  father  and  in  direct  opposition  to  the  wishes  of  the  mother,  attempted 
to  pen  up  a  cow.  The  cow  ran  into  plaintiff,  injuring  him.  It  appeared  that 
the  boy  had  never  had  special  care  of  the  cow,  though  he  had  attended  to 
feeding  her  occasionally.  It  was  held  that  the  boy's  acts  were  not  within 
the  scope  of  any  duty  or  service  for  the  father,  so  as  to  render  him  liable. 

T*Erlick  v.  Heis,  193  Ala.  669,  69  South.  536;  Harris  v.  Jones,  17  Ga. 
App.  215,  87  S.  E.  713;  Sultzbach  v.  Smith,  174  Iowa,  704,  156  N.  W.  673, 
L.  R.  A.  1916F,  228;  King  v.  Smythe,  140  Tenn.  217,  204  S.  W.  296,  L.  R, 
A.  1918F,  293 ;  Warren  v.  Norguard,  103  Wash.  284,  174  Pac.  7 ;  Watkins  v. 
Clark,  103  Kan.  629,  176  Pac.  131. 

™  Dougherty  v.  Woodward,  21  Ga.  App.  427,  94  S.  E.  636;  Hays  v.  Hogan, 
273  Mo.  1,  200  S.  W.  286,  L.  R,  A.  1918C,  715,  Ann.  Cas.  1918E,  1127 ;  Lewis 
v.  Steele,  52  Mont.  300,  157  Pac.  575. 

"Bnaher  v.  Benedict,  123  App.  Div.  579,  108  N.  Y.  Supp.  228;  Lewis  v. 
Steele,  52  Mont.  300,  157  Pac.  575. 

77  Daily  v.  Maxwell,  152  Mo.  App.  415,  133  S.  W.  351.    Under  the  Nebraska 
statute  (Rev.  St.  1913,  §  3048)  the  owner  of  an  automobile  who  permits  his 
son,  under  the  age  of  16,  to  operate  the  car,  is  guilty  of  negligence  and  is 
liable  if  other  elements  of  actionable  negligence  are  present.     Walker  v. 
Klapp,  99  Neb.  794,  157  N.  W.  962,  L.  R.  A.  1916E,  1292.    To  the  same  effect, 
see  Taylor  v.  Stewart,  172  N.  C.  203,  90  S.  E.  134. 

78  Birch  v.  Abercrombie,  74  Wash.  486,  133  Pac.  1020,  50  L.  R.  A.  (N.  S.) 
59,  modified  on  rehearing  135  Pac. 


§  121)  PARENT'S  LIABILITY  FOR  CHILD'S  TORTS  337 

the  car  is  used  for  a  family  purpose  with  the  authority  of  the  father, 
he  is  liable  for  the  negligent  acts  of  his  son.7* 

The  rule  that  the  father  is  not  liable  by  virtue  of  the  relationship 
for  the,  torts  of  his  child  applies,  irrespective  of  the  nature  of  the 
tort,  and  generally  irrespective  of  the  character  of  the  child.  A 
father,  for  instance,  is  not  liable  for  an  unauthorized  assault  by 
his  son,  though  he  may  have  known  that  the  son  was  of  a  vicious 
character.80  If  a  father  knows  that  his  minor  child  is  committing 
a  tort,  and  makes  no  effort  to  restrain  him,  he  will  be  deemed  to 
have  consented  and  authorized  its  commission.81  So,  too,  if  the  par- 
ent knows  that  the  child  is  careless  and  incompetent  to  handle  a 
dangerous  instrumentality,  such  as  firearms  he  will  be  liable  for  in- 
juries committed  by  the  child  by  the  wrongful  or  negligent  use 
thereof.82 

79Uphoff  v.  McCormick,  139  Minn.  392,  166  N.  W.  788;  Kayser  v.  Van 
Nest,  125  Minn.  277,  146  N.  W.  1091,  51  L.  R.  A.  (N.  S.)  970 ;  Smith  v.  Jordan, 
211  Mass.  269,  97  N.  E.  761;  McNeal  v.  McKain,  33  Okl.  449,  126  Pac.  742, 
41  L,.  R.  A.  (N.  S.)  775. 

so  Paul  v.  Hummel,  43  Mo.  119,  97  Am.  Dec.  381.  Parents,  whose  son  had 
been  discharged  from  a  hospital  for  the  insane,  are  not  liable  for  a  homicide 
subsequently  committed  by  him,  in  the  absence  of  evidence  that  they 
could  have  reasonably  anticipated  the  act  of  the  son,  because  of  a  change  in 
his  condition  after  discharge.  Ballinger  v.  Rader,  153  N.  C.  488,  69  S.  E. 
497. 

si  In  Beedy  v.  Reding,  16  Me.  362,  a  father  was  held  liable  in  trover  for 
wood  taken  at  three  different  times  by  his  minor  sons,  under  circumstances 
which  justified  the  jury,  in  finding  that  it  was  taken  with  the  father's  knowl- 
edge. "The  minor  sons  of  the  defendant,"  said  the  court,  "being  at  the  time 
members  of  his  family,  with  the  defendant's  team,  at  three  several  times, 
hauled  away  the  plaintiffs  wood.  This  could  hardly  have  been  done  without 
the  defendant's  knowledge,  if  it  had  not  his  approbation.  It  was  his  duty  to 
have  restrained  them  from  trespassing  on  his  neighbor's  property."  Where 
the  father  knew  that  his  son  had  stretched  a  rope  across  the  highway,  so  that 
a  traveler  was  injured,  he  is  liable.  Stewart  v.  Swartz,  57  Ind.  App.  249, 
106  N.  E.  719.  And  see  Dunks  v.  Grey  (C.  C.)  3  Fed.  862;  Schultz  v.  Mor- 
rison, 91  Misc.  Rep.  248.  154  N.  Y.  Supp.  257. 

82  Sousa  v.  Irome,  219  Mass.  273,  106  N.  E.  998;  Charlton  v.  Jackson,  183 
Mo.  App.  613,  167  S.  W.  670;  Johnson  v.  Glidden,  11  S.  D.  237,  76  N.  W. 
933,  74  Am.  St.  Rep.  795;  Hoverson  v.  Noker,  60  Wis.  511,  19  N.  W.  382, 
50  Am.  Rep.  381;  Marshall  v.  Wymond  (Ind.  App.)  121  N.  E.  449.  And  see 
Stephens  v.  Stephens,  172  Ky.  780,  189  S.  W.  1143,  holding  father  liable  where 
he  permitted  son  14  years  old  to  have  dynamite  caps.  Intrusting  an  auto- 
mobile to  a  son  known  to  be  incompetent  renders  the  parent  liable,  though 
the  son  was  not  acting  as  father's  agent  or  servant.  Gardiner  v.  Solomon, 
200  Ala.  115,  75  South.  621,  L.  R.  A.  1917F,  380.  But  an  automobile  is  not  a 
dangerous  instrument,  so  as  to  render  a  parent  negligent  in  permitting  his 
son  to  use  it  Blair  v.  Broadwater,  121  Va.  301,  93  S.  E.  632,  Lu  R.  A,  1918A, 
1011. 

TIFF.P.&  D.REL.(3o  ED.)— 22 


338  DUTIES  AND  LIABILITIES  OF  PARENTS  (Ch.  9 

The  liability  of  a  child  for  his  own  torts  will  be  shown  when  we 
come  to  deal  with  the  disability  of  infancy.88 


PARENT'S  LIABILITY  FOR  CHILD'S  CRIMES 

122.  The  relation  of  parent  and  child  does  not  render  the  parent 
liable  for  his  child's  crimes. 

A  parent  may  become  criminally  liable  for  the  acts  of  his  son  if 
he  counsels,  aids,  or  abets  him  therein,  just  as  he  would  become  lia- 
ble as  an  aider  and  abettor  of  any  other  criminal.  But  he  does  not 
incur  any  criminal  liability  for  acts  of  his  child  to  which  he  is  in  no 
way  a  party.  The  child's  liability  for  his  own  crimes  is  hereafter 
shown.84 

ss  Post,  p.  523.  8*  Post,  p.  529. 


§  123)  BIGHTS  OF  PARENTS  AND  OF  CHILDREN  339 


CHAPTER  X 


123.  Rights  of  Parents  in  General. 

124.  Parent's  Right  to  Correct  Child. 
125-126.  Custody  of  Children. 

127.  Parent's  Right  to  Child's  Services  and  Earnings. 

128-131.  Emancipation  of  Children. 

132-134.  Action  by  Parent  for  Injuries  to  Child. 

135-137.  Action  by  Parent  for  Seduction  or  Debauching  of  Daughter. 

138,  139.  Action  by  Parent  for  Abducting,  Enticing,  or  Harboring  Child. 

140.  Parent's  Rights  in  Child's  Property. 

141.  Gifts,  Conveyances,  and  Contracts  between  Parent  and  Child. 
142-143.  Advancements. 

144.  Duty  of  Child  to  Support  Parents. 

145.  Domicile  of  Child. 


IN  GENERAL 

123.  To  enable  them  to  perform  their  duties,  parents  have,  subject 
to  certain  restrictions — 

(a)  The  right  to  correct  their  children. 

(b)  The  right  to  their  custody. 

(c)  The  right  to  their  services  and  earnings. 

\ 

Parents  possess  certain  powers  over  their  children,  and  certain 
rights  in  relation  to  them.  ,As  will  be  seen  in  the  following  pages, 
they  have  the  right  to  control  and  correct  them  within  certain  lim- 
its, the  right  to  the  custody  of  them,  and  the  right  to  their  services. 
Blackstone  says  that  these  rights  are  given  to  parents,  partly  to  en- 
able them  to  more  effectively  perform  their  duty,  and  partly  as  a 
recompense  for  their  care  and  trouble  in  discharging  it.1  Kent 
says :  "The  rights  of  parents  result  from  their  duties.  As  they  are 
bound  to  maintain  and  educate  their  children,  the  law  has  given 
them  a  right  to  such  authority,  and,  in  the  support  of  that  author- 
ity, a  right  to  the  exercise  of  such  discipline  as  may  be  requisite  for 
the  discharge  of  their  sacred  trust.  This  is  the  true  foundation  of 
parental  power."  * 

1 1  Bl.  Comm.  452.  *  2  Kent,  Comm.  203. 


340  BIGHTS  OF  PARENTS  AND  OF  CHILDREN  (Ch.  10 


PARENT'S  RIGHT  TO  CORRECT  CHILD 

124.  A  parent,  or  one  standing  in  loco  parentis,  may  correct  the 
child  in  a  reasonable  manner.  If  the  correction  is  exces- 
sive or  without  cause,  he  will  be  amenable  to  the  criminal 
law. 

A  parent  has  the  right  to  correct  and  punish  his  minor  child  in  a 
reasonable  manner;  and,  so  long  as  he  keeps  within  the  bounds  of 
moderation,  he  cannot  be  made  amenable  to  the  criminal  law  there- 
for, as  he  would  be  if  he  undertook  to  punish  another's  child.3  Per- 
sons standing  in  loco  parentis  have  the  same  right.4  A  school- 
teacher is  within  the  rule.6  In  the  decided  cases,  the  question  has 
generally  arisen  in  regard  to  the  father;  but  there  is  no  reason  why 
the  power  of  correction  should  not,  like  the  power  of  control  and 
the  right  to  the  child's  services,  pass  to  the  mother  on  the  father's 
death.  Indeed,  there  seems  no  reason  to  doubt  but  that,  even  dur- 
ing the  father's  lifetime,  except  against  his  objection,  the  mother 
has  a  legal  right  to  correct  her  children.  As  a  child  cannot  main- 
tain an  action  in  tort  against  its  parents,6  a  child  cannot  maintain  a 
civil  action  against  its  parents,  or  one  standing  in  loco  parentis, 
for  assault  in  administering  corporal  punishment.7 

A  parent  cannot  exercise  the  right  of  correction  in  a  cruel  man- 
ner, as  by  inflicting  excessive  punishment.8  Nor  can  he  inflict  pun- 

« 1  Hawk.  P.  C.  130 ;  1  BL  Comm.  452 ;  Clark,  Cr.  Law,  212 ;  Winterburn 
v.  Brooks,  2  Car.  &  K.  16. 

<  Gorman  v.  State,  42  Tex.  221;  State  v.  Alford,  68  N.  O.  322;  Boyd  v. 
State,  88  Ala.  169.  7  South.  268,  16  Am.  St  Rep.  31;  Dean  v.  State,  89  Ala. 
46,  8  South.  38.  See,  also.  Fortinberry  v.  Holmes,  89  Miss.  373,  42  South.  799, 
holding  that,  where  a  mother  left  her  child  with  a  person  who  was  to  sup- 
port, educate,  care  for,  and  treat  it  as  his  own  child,  such  person  stood  in 
loco  parentis,  and  hence  could  not  be  sued  by  the  child  for  a  whipping  in- 
flicted on  it,  even  though  the  mother  stated,  when  she  gave  the  child,  that  it 
was  not  to  be  whipped. 

»  Anderson  v.  State,  3  Head  (Tenn.)  455,  75  Am.  Dec.  774;  Lander  v. 
Seaver,  32  Vt.  114,  76  Am.  Dec.  156;  State  v.  Burton,  45  Wis.  150,  30  Am. 
Rep.  706;  Danenhoffer  v.  State,  69  Ind.  295,  35  Am.  Rep.  216;  Patterson  v. 
Nutter,  78  Me.  509,  7  Atl.  273,  57  Am.  Rep.  818. 

«  Roller  v.  Roller,  37  Wash.  242,  79  Pac.  788,  68  L.  R,  A.  893,  107  Am.  St. 
Rep.  805,  3  Ann.  Gas.  1. 

T  Rowe  v.  Rugg,  117  Iowa,  606.  91  N.  W.  903,  94  Am.  St.  Rep.  318. 

s  Reg.  v.  Griffin,  11  Cox,  Cr.  Cas.  402 ;  Johnson  v.  State,  2  Humph.  (Tenn.) 
283,  36  Am.  Dec.  322 ;  Com.  v.  Coffey,  121  Mass.  66 ;  Com.  v.  Blaker,  1  Brewst. 
<Peu)  311 ;  Keal  v.  State,  54  Ga.  281 ;  State  v.  Bitman,  13  Iowa,  485 ;  State  v. 


§  124)  PARENT'S  RIGHT  TO  CORRECT  CHILD  341 

ishment  wantonly  and  without  cause.9  If  he  transcends  his  au- 
thority in  this  respect,  he  will  be  amenable  to  the  criminal  law.  He 
will  be  guilty  of  assault  and  battery,10  or  murder  or  manslaugh- 
ter,11 according  to  the  circumstances.  "The  right  of  parents  to 
chastise  their  refractory  and  disobedient  children  is  so  necessary 
to  the  government  of  families,  and  to  the  good  order  of  society, 
that  no  moralist  or  lawgiver  has  ever  thought  of  interfering  with 
its  existence,  or  of  calling  upon  them  to  account  for  the  manner  of 
its  exercise  upon  light  or  frivolous  pretenses.  But  at  the  same  time 
that  the  law  has  created  and  preserved  this  right,  in  its  regard  for 
the  safety  of  the  child,  it  has  prescribed  bounds  beyond  which  it 
shall  riot  be  carried.  In  chastising  a  child,  the  parent  must  be 
careful  that  he  does  not  exceed  the  bounds  of  moderation,  and  in- 
flict cruel  and  merciless  punishment.  If  he  do,  he  is  a  trespasser, 
and  liable  to  be  punished  by  indictment.  It  is  not,  then,  the  in- 
fliction of  punishment,  but  the  excess,  which  constitutes  the  offense ; 
and  what  this  excess  shall  be  is  not  a  conclusion  of  law,  but  a 
question  of  fact,  for  the  determination  of  the  jury."  12 

Some  of  the  authorities  hold  a  parent,  or  one  standing  in  loco 
parentis,  criminally  liable  if,  in  correcting  the  child,  he  acts  unrea- 
sonably— that  is,  if  the  correction  is  immoderate  or  excessive  in  fact 
— even  though  he  may  have  acted  honestly  and  without  malice,  and 
though  no  permanent  injury  may  have  been  inflicted  on  the  child ; 
and  they  leave  it  to  the  jury  exclusively  to  determine  whether  the 
correction  was  immoderate,  without  any  further  test  than  that  of  its 


Jones,  95  N.  C.  588,  59  Am.  Rep.  282 ;   Com.  v.  Seed,  5  Clark  (Pa.)  78 ;   Dean  v. 
State,  89  Ala.  46,  8  South.  38. 

8  FLETCHER  v.  PEOPLE,  52  111.  395,  Cooley  Gas.  Persons  and  Domestic  Re- 
lations, 181;  Com.  v.  Coffey,  121  Mass.  66;  Gorman  v.  State,  42  Tex.  221; 
State  v.  Jones,  95  N.  C.  588,  59  Am.  Rep.  282;  Hinkle  v.  State,  127  Ind. 
490,  26  N.  E.  777.  It  Is  held  that,  where  the  relation  of  parent  and  child  ex- 
ists, the  child  cannot  maintain  an  action  for  damages  against  the  parent 
for  personal  injuries  wrongfully  inflicted.  "The  peace  of  society,  and  of  the 
families  composing  society,  and  a  sound  public  policy,  designed  to  subserve 
the  repose  of  families,  and  the  best  interests  of  society,  forbid  to  the  minor 
child  a  right  to  appear  in  court  in  the  assertion  of  a  claim  to  civil  redress 
for  personal  injuries  suffered  at  the  hands  of  the  parent.  The  state,  through 
its  criminal  laws,  will  give  the  minor  child  protection  from  parental  vio- 
lence and  wrongdoing,  and  this  is  all  the  child  can  be  heard  to  demand." 
Hewlett  v.  George,  68  Miss.  703,  9  South.  885,  13  L.  R,  A.  682. 

10  Clark,  Cr.  Law,  212. 

11  Clark,  Or.  Law,  158,  172. 

12  Johnson  v.  State,  2  Humph.  (Tenn.)  283,  36  Am.  Dec,  322. 


342  RIGHTS  OF  PARENTS  AND  OF  CHILDREN  (Ch.  10 

being  reasonable.18  According  to  the  better  opinion,  however,  the 
jury  are  not  to  be  permitted  to  determine  in  all  cases,  without  re- 
gard to  any  fixed  rule  or  standard,  whether  the  correction  was,  in 
their  opinion,  unreasonable,  and  therefore  excessive.  Parents  must 
be  allowed  to  exercise  some  discretion.  A  jury  cannot  exercise  it 
for  them.  The  court  should  therefore  instruct  the  jury  that  they  are 
not  justified  in  finding  that  the  parent  is  criminally  liable  because  he 
exceeded  his  authority,  unless  they  find  that  he  inflicted  permanent 
injury,  or  that  he  acted  from  malice.14  As  was  said  by  the  North 
Carolina  court:  "It  would  be  a  dangerous  innovation,  fruitful  in 
mischief,  if,  in  disregard  of  an  established  rule  assigning  limits  to 
parental  power,  it  were  to  be  left  to  the  jury  to  determine  in  each 
case  whether  a  chastisement  was  excessive  and  cruel,  and  to  con- 
vict when  such  was  their  opinion."  15  "The  law  has  provided  no 
means  whereby  a  parent  meditating  chastisement,  can  first  obtain 
a  judicial  opinion  as  to  its  necessity,  the  proper  instruments,  and 
its  due  extent.  In  reason,  therefore,  if  he  acts  in  good  faith, 
prompted  by  true  parental  love,  without  passion,  and  inflicts  no 
permanent  injury  on  the  child,  he  should  not  be  punished  merely 
because  a  jury,  reviewing  the  case,  do  not  deem  that  it  was  wise  to 
proceed  so  far."  1C  Malice  on  the  part  of  the  parent  may,  of  course, 
be  inferred  from  the  circumstances,  the  fault  for  which  the  ptmish- 
ment  was  inflicted,  the  instrument  used,  etc.17  Thus,  malice  may 

18  Patterson  v.  Nutter,  78  Me.  509,  7  Atl.  273,  57  Am.  Rep.  818 ;  Johnson  v. 
State,  2  Humph.  (Tenn.)  283,  36  Am.  Dec.  322;  Hinkle  v.  State,  127  Ind. 
490,  26  N.  E.  777 ;  Neal  v.  State,  54  Ga.  281. 

i*  State  v.  Jones,  95  N.  C.  588,  59  Am.  Rep.  282;  State  v.  Alford,  68  N.  C. 
322;  State  Y-  Pendergrass,  19  N.  C.  365,  31  Am.  Dec.  416;  Com.  v.  Seed,  6 
Clark  (Pa.)  78;  Boyd  v.  State,  88  Ala.  1G9,  7  South.  268,  16  Am.  St.  Rep.  31; 
Dean  v.  State,  89  Ala.  46,  8  South.  38. 

15  State  v.  Jones,  95  N.  C.  588,  59  Am.  Rep.  282. 

i«  1  Bish.  Cr.  Law,  §  882.  "There  are  some  well-considered  authorities 
which  hold  teachers  and  parents  alike  liable,  criminally,  if,  in  the  infliction 
of  chastisement,  they  act  clearly  without  the  exercise  of  reasonable  judg- 
ment and  discretion.  The  test  which  seems  to  be  fixed  by  these  cases  is 
the  general  judgment  of  reasonable  men.  Patterson  v.  Nutter,  78  Me.  509, 
7  Atl.  273,  57  Am.  Rep.  818.  The  more  correct  view,  however,  and  the  one 
better  sustained  by  authority,  seems  to  be  that  when,  in  the  judgment  of 
reasonable  men,  the  punishment  inflicted  is  immoderate  and  excessive,  and  a 
jury  would  be  authorized,  from  the  facts  of  the  case,  to  infer  that  it  was  In- 
duced by  lega\  malice,  or  wickedness  of  motive,  the  limit  of  lawful  authority 
may  be  adjudged  to  be  passed."  Boyd  v.  State,  88  Ala.  169,  7  South.  268, 
16  Am.  St.  Rep.  31. 

IT  Boyd  v.  State,  88  Ala.  169,  7  South.  268,  16  Am.  St.  Rep.  31. 


§§  125-126)  CUSTODY    OP   CHILDREN  343 

well  be  inferred  where  a  father  strikes  his  10  year  old  daughter 
with  a  saw ; 18  or  leaves  his  12  year  old  daughter  in  the  house  alone, 
tied  to  a  piece  of  furniture; 10  or  keeps  his  blind  son  shut  up  for 
several  days  in  winter,  in  a  cold,  damp  cellar;20  or  strikes  his  son 
several  times  in  the  face  with  his  fist,  and  with  the  butt  end  of  a 
stick,  and  uses  language  showing  passion.21 

In  all  cases  the  legal  presumption  is  that  the  correction  was  prop- 
er, and  the  burden  of  proof  is  on  him  who  contends  that  it  was 
otherwise.22 

CUSTODY  OF  CHILDREN 

125.  At  common  law,  in  England,  the  father,  and  on  his  death  the 

mother,  was  entitled,  as  a  matter  of  course,  to  the  custody 
and  control  of  their  minor  children  except  in  case  of  their 
gross  unfitness.  Equity,  however,  would  not  allow  the 
right  to  control  as  against  the  well-being  of  the  child.  The 
common-law  doctrine  has  also  been  modified  by  statute 
in  England. 

126.  In  this  country  the  courts  recognize  the  parental  right  of  cus- 

tody in  the  different  jurisdictions,  but  the  prevailing  doc- 
trine is  that,  in  awarding  the  custody  of  a  child,  the  welfare 
of  the  child  is  the  controlling  consideration.  The  courts 
consider,  not  only  the  fitness  of  the  persons  contending  for 
the  custody,  but  the  condition  and  future  prospects  of  the 
child,  and  the  wishes  of  the  child  where  it  is  old  enough 
to  decide  intelligently. 

At  common  law  the  father  is  entitled  to  the  custody  of  his  minor 
child.  Some  cases  recognize  this  as  an  absolute  right,  except  in  the 
case  of  the  most  flagrant  unfitness,  and  have  awarded  the  father  the 
custody  of  his  child  without  taking  the  interests  of  the  child  into 
consideration  at  all.23  The  right  has  been  upheld  even  to  the  extent 

is  Neal  v.  State,  54  Ga.  281. 

i»  Hinkle  v.  State,  127  Ind.  490,  26  N.  E.  777. 

20  FLETCHER  v.  PEOPLE,  52  111.  395,  Cooley  Cas.  Persons  and  Domestic 
Relations,  181. 

21  Boyd  v.  State,  88  Ala.  169,  7  South.  268.  16  Am.  St.  Rep.  31. 

22  See  Anderson  v.  State,  3  Head    (Tenn.)  455,  75  Am.  Dec.  774. 

2s  Ex  parte  Hopkins.  3  P.  Wins.  152;  Rex  v.  De  Manneville,  5  East,  221; 
Rex  v.  Greenhill,  4  Adol.  &  E.  624;  Ex  parte  Skinner,  9  Moore,  278;  In  re 
Andrews,  L.  R.  8  Q.  B.  153;  People  v.  Olmstead,  27  Barb.  (N.  Y.)  9. 


344  RIGHTS  OP  PARENTS  AND  OF  CHILDREN  (Ch.  10 

of  allowing  the  father  to  take  an  infant  from  its  mother's  breast.24 
After  the  death  of  the  father,  the  right  to  the  custody  of  the  chil- 
dren passes  to  the  mother.86 

The  common-law  rule  of  the  husband's  paramount  right  to  the 
custody  of  his  children  was  modified  in  England  by  an  act  passed  in 
1839,  known  as  "Talfourd's  Act,"  conferring  authority  on  the  Court 
of  Chancery  to  award  to  the  mother  the  custody  of  children  under 
the  age  of  7,26  and  again  by  the  "Infant's  Custody  /  ct,"  of  1873, 
conferring  such  authority  as  to  children  under  16.2T  Long  prior  to 
these  acts,  the  Court  of  Chancery  in  England  had  departed  from 
the  strict  rule  of  the  common  law,  and  had  refused  to  recognize  any 
right  in  the  father  to  demand  the  custody  of  his  child,  regardless  of 
the  child's  interests,  and  had  interfered  to  protect  the  welfare  of  .the 
child; 28  and  the  rule  there  is  now  well  settled  that  a  court  exercis- 
ing chancery  jurisdiction  will  primarily  consider  the  .welfare  of  the 
child.29 

In  this  country  the  courts,  both  of  law  and  of  equity,  while  rec- 
ognizing the  common-law  rule  that  the  right  to  the  custody  of  the 
child  is  primarily  in  the  father,80  and  after  his  death  in  the  mother,31 
have  modified  the  rule  to  a  greater  or  less  extent,  and  regarding 
the  father's  paramount  right  at  common  law  as  a  mere  prima  facie 
right,82  which  is  not  inalienable,88  have  adopted  the  equitable  prin- 
ciple that  this  right  must  yield  to  considerations  affecting  the  well- 
being  of  the  child.84  While  there  is  some  conflict  in  the  cases,  the 
great  weight  of  authority  establishes  the  following  propositions: 

24  Rex  v.  De  Manneville,  5  East,  221. 

25Villareal  v.  Mellish,  2  Swanst.  536;  People  v.  Wilcox,  22  Barb.  (N.  T".> 
178 ;  Brackett  v.  Bracket  t,  77  N.  H.  68,  87  Atl.  252 ;  Cook  v.  Bybee,  24  Tex. 
278. 

2«  St.  2  &  3  Viet.  c.  54. 

27  St  36  &  37  Viet  c.  12. 

282  Story,  Eq.  Jur.  §  1341:  Wellesley  v.  Duke  of  Beaufort,  2  Russ.  1; 
Wellesley  v.  Wellesley,  2  Bligh.  (N.  S.)  141. 

28  Reg.  v.  Gyngall,  [1893]  2  Q.  B.  232. 

so  Brackett  v.  Brackett,  77  N.  H.  68,  87  Atl.  252. 

si  Brackett  v.  Brackett,  77  N.  H.  68,  87  Atl.  252;  In  re  Lindner's  Estate,  13 
Cal.  App.  208,  109  Pac.  101.  Where  the  mother  had  been  awarded  the  custody 
of  the  child  and  subsequently  died  (the  father)  was  entitled  to  the  custody  of 
the  child,  if  a  proper  person.  In  re  Smith's  Guardianship  (Iowa)  158  N.  W. 
578. 

82  Jensen  v.  Jensen,  168  Wis.  502,  170  N.  W.  735. 

«8  State  ex  rel.  Cave  v.  Tincher,  258  Mo.  1,  166  S.  Wk  1028,  Ann.  Cas. 
1915D,  696. 

«*  Dumain  v.  Gwynne,  10  Allen  (Mass.)  270;    Wadleigh  v.  Newhall  (C.  C.) 


.§§  125-126)  CUSTODY  OF  CHILDREN  345 

(1)  Though  the  courts  have  a  discretion  in  contentions  over  the 
•custody  of  children,  and  will  take  into  consideration  the  welfare 
of  the  child,  the  right  of  the  father  is  generally  held  to  be  para- 
mount, if  he  is  a  fit  person.35  The  courts  cannot  act  arbitrarily, 
and  disregard  the  rights  of  the  father,  merely  because  the  prospects 
and  surroundings  of  the  child  will  be  brighter  if  he  is  awarded  jtp 
some  other  and  more  wealthy  person.  The  parent  cannot  be  de- 
prived of  the  custody  of  his  children  because  he  is  poor,  and  occu- 
pies a  humble  station  in  life,  and  a  more  wealthy  and  refined  person 
is  willing  to  take  them,  and  give  them  better  advantages.86  As 

136  Fed.  941 ;  WARD  v.  WARD,  34  Tex.  Civ.  App.  104,  77  S.  W.  829,  Cooley 
-Gas.  Persons  and  Domestic  Relations,  189;  In  re  Smith,  13  111.  138;  Cowls 
v.  Cowls,  3  Oilman  (111.)  435,  44  Am.  Dec.  708;  State  v.  Baird,  21  N.  J. 
Eq.  384 ;  State  ex  rel.  Cave  v.  Tincher,  258  Mo.  1,  166  S.  W.  1028,  Ann.  Cas. 
1915D,  696;  Jensen  v.  Jensen,  168  Wis.  502,  170  N.  Wi  735;  Peese  v. 
Gellerman,  51  Tex.  Civ.  App.  39,  110  S.  W.  196;  State  v.  Flint,  63  Minn. 
187,  65  N.  W.  272;  Schroeder  v.  State,  41  Neb.  745,  60  N.  Wl  89;  Slater 
v.  Slater,  90  Va.  845,  20  S.  E.  780 ;  Corrie  v.  Corrie,  42  Mich.  509, '  4  N. 
W.  213;  Rowe  v.  Rowe,  28  Mich.  353;  In  re  Heather  Children,  50  Mich. 
261,  15  N.  W.  487;  Saunders  v.  Saunders,  166  Ala.  351,  52  South.  310; 
Steele  v.  Hiohenadel,  141  111.  App.  201,  affirmed  Hohenadel  v.  Steele,  237  111. 
229,  86  N.  E.  717;  Waters  v.  Gray  (Mo.  App.)  193  S.  W.  33;  Knapp  v.  Tolan, 
26  N.  D.  23,  142  N.  W.  915,  49  L.  R.  A.  (N.  S.)  83;  Brackett  v.  Brackett,  77 
N.  H.  68,  87  Atl.  252. 

ss  Verser  v.  Ford,  37  Ark.  27;  Terry  v.  Johnson,  73  Neb.  653, 103  N.  W.  319; 
GILMORE  v.  KITSON,  165  Ind.  402,  74  N.  E.  1083,  Cooley  Cas.  Persons  and 
Domestic  Relations,  182 ;  Parker  v.  Wiggins  (Tex.  Civ.  App.)  86  S.  W.  788 ; 
Hernandez  v.  Thomas,  50  Fla.  522,  39  South.  641,  2  L.  R,  A,  (N.  S.)  203,  111 
Am.  St.  Rep.  137,  7  Ann.  Cas.  446;  State  v.  Richardson,  40  N.  H.  272; 
People  v.  Sinclair,  47  Misc.  Rep.  230,  95  N.  Y.  Supp.  861 ;  Rust  v.  Vanvacter, 
9  W.  Va.  600;  Henson  v.  Walts,  40  Ind.  170;  Draper  v.  Draper,  68  111.  17; 
State  v.  Barney,  14  R.  I.  62 ;  Johnson  v.  Terry,  34  Conn.  259 ;  People  v.  Olin- 
stead,  27  Barb.  (N.  Y.)  9 ;  Lovell  v.  House  of  Good  Shepherd,  9  Wash.  419,  37 
Pac.  660,  43  Am.  St.  Rep.  839 ;  Brinster  v.  Compton,  68  Ala.  299 ;  Slater  v. 
Slater,  90  Va.  845,  20  S.  E.  780 ;  Latham  v.  Ellis,  116  N.  C.  30,  20  S.  E,  1012 ; 
People  ex  rel.  Snell  v.  Snell,  77  M5sc.  Rep.  538,  137  N.  Y.  Supp.  193 ;  Brackett 
v.  Brackett,  77  N.  H.  68,  87  Atl.  252 ;  Buchanan  v.  Buchanan,  93  Kan.  613,  144 
Pac.  840;  Kirkland  v.  Matthews  (Tex.  Civ.  App.)  174  S.  W.  830.  The  fa- 
ther is  entitled  to  the  custody,  even  against  a  guardian  appointed  without  his 
consent  In  re  Schwartz,  171  Cal.  633,  154  Pac.  304.  In  Idaho  the  father 
has  no  absolute  right  to  deprive  the  mother  of  the  custody  of  an  infant  child 
merely  because  he  is  the  father.  State  v.  Beslin,  19  Idaho,  185,  112  Pac. 
1053. 

so  Swarens  v.  Swarens,  78  Kan.  682,  97  Pac.  968;  People  ex  rel.  Beaudoin 
v.  Beaudoin,  126  App.  Div.  505,  110  N.  Y.  Supp.  1092,  affirmed  193  N.  Y.  611, 
86  N.  E.  1129;  Wohlford  v.  Burckhardt,  141  111.  App.  321;  Hernandez  v. 
Thomas,  50  Fla.  522,  39  South.  641,  2  L.  R.  A.  (N.  S.)  203,  111  Am.  St.  Rep. 
137,  7  Ann.  Cas.  446;  Cormack  v.  Marshall,  122  111.  App.  208;  Dunkin  v. 
Seifert,  123  Iowa,  64,  98  N.  W.  558. 


346  BIGHTS  OP  PARENTS  AND  OF  CHILDREN  (Ch.  10 

was  said  by  the  Arkansas  court:  "It  is  one  of  the  cardinal  prin- 
ciples of  nature  and  of  law  that  as  against  strangers,  the  father, 
however  poor  and  humble,  if  able  to  support  the  child  in  his  own 
style  of  life,  and  of  good  moral  character,  cannot,  without  the  most 
shocking  injustice,  be  deprived  of  the  privilege  by  any  one  what- 
ever, however  brilliant  the  advantage  he  may  offer.  It  is  not 
enough  to  consider  the  interests  of  the  child  alone."  "  While  the 
welfare  of  the  child  is  always  to  be  considered,  due  weight  must 
always  be  given  to  the  legal  rights  of  the  father.  "The  discretion 
to  be  exercised  is  not  an  arbitrary  one,  but,  in  the  absence  of  any 
positive  disqualification  of  the  father  for  the  proper  discharge  of 
his  parental  duties,  he  has,  as  it  seems  to  us,  a  paramount  right  to 
the  custody  of  his  infant  child,  which  no  court  is  at  liberty  to  dis- 
regard. And,  while  we  are  bound  to  also  regard  the  p'ermanent  in- 
terests and  welfare  of  the  child,  it  is  to  be  presumed  that  its  inter- 
ests and  welfare  will  be  best  promoted  by  continuing  that  guardian- 
ship which  the  law  has  provided,  until  it  is  made  plainly  to  appear 
that  the  father  is  no  longer  worthy  of  the  trust."  88 

(2)  The  best  interests  of  the  child  are  always  to  be  considered, 
having  due  regard  to  the  parental  rights  of  the  father.39  Few  cases 
can  be  found  in  which  a  child  has  been  taken  from  a  father,  who 
was  able'  and  willing  to  support  it,  and  who  had  been  guilty  of  no 
breach  of  duty  towards  it,  and  given  to  a  stranger  or  to  a  more  dis- 
tant relative.  An  examination  of  the  cases  will  show  that  where 
the  supposed  interests  of  the  child  have  been  allowed  to  control  as 
against  the  right  of  the  father,  the  father  has  been  guilty  of  some 
breach  of  his  duty  to  the  child.  If  a  father,  or  one  standing  in  loco 
parentis,  is  a  drunkard,  or  a  criminal,  or  cruel,40  or  shiftless,  or  oth- 
erwise unfit,41  the  interests  of  the  child  should  outweigh  his  paren- 


«T  Verser  v.   Ford,  37  Ark.   27. 

ss  State  v.  Richardson,  40  N.  H.  272;  Taylor  v.  Taylor,  103  Va.  750,  50  S. 
E.  273.  It  has  been  held,  however,  that  where  husband  and  wife  are  separated 
the  question  which  one  of  them  is  entitled  to  the  custody  of  their  child  is 
within  the  sound  discretion  of  the  court.  Lozano  v.  Martinez,  36  Phil.  Rep. 
976. 

3»  Commonwealth  v.  Strickland,  27  Pa.  Super.  Ct.  309;  Parker  v.  Wiggins 
(Tex.  Civ.  App.)  86  S.  W.  788;  Mason  v.  Williams,  165  Ky.  331,  176  S.  W. 
1171;  Taylor  v.  Taylor,  103  Va.  750,  50  S.  E.  273;  Wadleigh  v.  Newhall 
(C.  C.)  136  Fed.  941. 

<°  Marshall  v.  Reams,  32  Fla.  499,  14  South.  95,  37  Am.  St.  Rep.  118;  In  re 
Gustow,  220  N.  Y.  373,  115  N.  E.  995. 

«iChapsky  v.  Wood,  26  Kan.  650,  40  Am.  Rep.  321;   In  re  Brown,  117  IH. 


§§  125-126)  CUSTODY  OF  CHILDREN  347 

tal  right  of  custody.  So,  if  a  father  deserts  his  wife  and  child  when 
the  child  is  helpless,  and  leaves  her  or  others  to  perform  his  duties 
for  him,  the  welfare  of  the  child  may  outweigh  his  parental  right 
when  he  subsequently  seeks  the  aid  of  the  court  to  regain  the  cus- 
tody which  he  has  thus  relinquished.*2  And  even  where  he  relin- 
quishes the  custody  of  his  child  to  another  at  the  latter's  request, 
and  for  what  he  supposes  to  be  the  interests  of  the  child,  he  may 
be  regarded,  in  a  sense,  as  having  neglected  his  duty  as  a  father; 
and  his  right  to  the  child's  custody  when  he  seeks  to  regain  it,  par- 
ticularly after  the  lapse  of  years,  will  have  to  yield  to  the  child's 
interests.43 

Almost  all  the  cases  in  which  the  father's  right  to  the  custody  of 
his  child  has  been  denied  are  cases  in  which  he  was  unfit  to  have 
the  care  of  the  child,  or  else  cases  in  which  he  had  relinquished  his 
right  for  a  time,  and  sought  the  aid  of  the  court  to  regain  custody. 
Manifestly,  in  these  cases,  he  has  no  right  to  complain  if  the  court 
regards  the  child's  welfare  as  the  controlling  consideration,  even 
where  he  is  able,  ready,  and  willing  to  perform  his  duty  in  the  fu- 
ture.44 

App.  332;    Plahn  v.  Dribred,  36  Tex.  Civ.  App.  600,  83  S.  W.  867;   Cowls  v. 
Cowls,  3  Oilman  (111.)  435,  44  Am.  Dec.  708. 

42  McShan  v.  McShan,  56  Miss.  413.    And  see  Schroeder  v.  State,  41  Neb. 
745,  60  N.  W.  89 ;    Hewitt  v.  Long,  76  111.  399. 

43  Chapsky  v.  Wood,  26  Kan.  650,  40  Am.  Rep.  321 ;   Washaw  v.  Gimble,  50 
Ark.  351,  7  S.  W.  389 ;    Wood  v.  Wood,  77  N.  J.  Eq.  593,  77  Atl.  91 ;   People 
v.  Porter,  23  111.  App.  196.     The  child's  interests,  of  course,  may  require  it 
to  be  restored  to  the  father  in  such  a  case.     See  Armstrong  v.  Stone,  9 
Grat.  (Va.)  102. 

44  U.  S.  v.  Green,  3  Mason,  482,  Fed.  Cas.  No.  15,256;   Mercein  v.  People,  25 
Wend.  (N.  Y.)  64,  35  Am.  Dec.  653;    Waldron's  Case,  13  Johns.  (N.  Y.)  418; 
Corrie  v.  Corrie,  42  Mich.  509,  4  N.  W.  213;    Ex  parte  Schumpert,  6  Rich. 
(S.  C.)  344;    Bonnett  v.  Bonnett,  61  Iowa,  199,  16  N.  W.  91,  47  Am.  Rep. 
810 ;   State  v.  Stigall,  22  N.  J.  Law,  286 ;   Bryan  v.  Lyon,  104  Ind.  227,  3  N.  E. 
880,  54  Am.  Rep.  309;    In  re  Smith,  13  111.  138;    Gishwiler  v.  Dodez,  4  Ohio 
St.  615;    McShan  v.  McShan,  56  Miss.  413;   Washaw  v.  Gimble,  50  Ark.  351, 
7  S.  W.  389;    Gibbs  v.  Brown,  68  Ga.  803;    Ex  parte  Murphy,  75  Ala.  409; 
Brinster  v.  Compton,  68  Ala.  299;   Sturtevant  v.  State,  15  Neb.  459,  19  N.  W. 
617,  48  Am.  Rep.  349.     In  Wood-  v.  Wood,  77  N.  J.  Eq.  593,  77  Atl.  91,  a  girl 
six  years  old  had  been  placed  by  her  father,  the  mother  consenting,  in  the 
care  of  her  aunts,  to  be  brought  up  and  educated  by  them.     She  had  a  good 
home,  loving  care  and  was  brought  up  under  much  better  conditions  than  it 
was  within  the  power  of  the  parents  to  afford.    The  conduct  of  the  parents 
showed  their  confidence  in  the  aunts  and  their  belief  that  it  was  for  the 
child's  welfare  to  remain  with  them.    The  father  died,  leaving  his  family 
in  poor  circumstances.     The  mother,  while  finding  no  fault  with  the  aunts' 
method  of  bringing  up  the  child,  attempted  to  regain  custody,  apparently  to 


348  BIGHTS  OP  PARENTS  AND  OF  CHILDREN  (Ch.  10 

"As  to  the  question  of  the  right  of  the  father  to  have  the  custody 
of  his  infant  child,  in  a  general  sense  it  is  true.  But  this  is  not  on 
account  of  any  absolute  right  of  the  father,  but  for  the  benefit  of  the 
infant;  the  law  presuming  it  to  be  for  its  interest  to  be  under  the 
nurture  and  care  of  his  natural  protector,  both  for  maintenance  and 
education.  When,  therefore,  the  court  is  asked  to  lend  its  aid  to 
put  the  infant  into  the  custody  of  the  father,  and  to  withdraw  him 
from  other  persons,  it  will  look  into  all  the  circumstances,  and  as- 
certain whether  it  will  be  for  the  real,  permanent  interest  of  the 
infant;  and,  if  the  infant  be  of  sufficient  discretion,  it  will  also  con- 
sult its  personal  wishes.  It  will  free  it  from  all  undue  restraint, 
and  endeavor,  as  far  as  possible,  to  administer  a  conscientious,  pa- 
rental duty  with  reference  to  its  welfare.  It  is  an  entire  mistake  to 
suppose  the  court  is  at  all  events  bound  to  deliver  over  the  infant 
to  his  father,  or  that  the  latter  has  an  absolute  vested  right  in  the 
custody."  *5  "When  an  infant  child  or  minor  is  out  of  the  posses- 
sion and  custody  of  the  father,  and  habeas  corpus  is  resorted  to  by 
the  latter  to  obtain  such  custody,  it  does  not  follow  as  necessary 
matter  of  right  that  the  prayer  of  the  petition  will  be  granted.  The 
court  is  clothed  with  a  sound  discretion  to  grant  or  refuse  relief, 
always  to  be  exercised  for  the  benefit  of  the  infant  primarily,  but 
not  arbitrarily  in  disregard  of  the  father's  natural  right  to  be  pre- 
ferred. If  the  father  be  reasonably  suitable,  and  able  to  maintain 
and  rear  his  child,  his  prayer  should  ordinarily  be  granted."  *6 

There  may  be  cases  in  which  the  court,  from  a  consideration  of 
the  child's  welfare,  would  not  award  its  custody  to  the  father,  even 
though  no  fault  or  neglect  of  duty  could  be  imputed  to  him.  A 
child  of  very  tender  years  needs  the  care  and  attention  of  a  mother, 
and  even  were  she  to  desert  the  father,  without  any  fault  on  his 
part,  the  child  would  not  be  taken  from  her,  at  least  until  it  has 
reached  an  age  when  the  father  can  properly  care  for  it.*T  It  can 

make  use  of  the  child  and  to  have  her  "rough  it"  at  home  with  the  younger 
children.  It  was  held  that  the  child  should  remain  in  the  custody  of  the 
aunts. 

45  Per  Story,  J.,  in  U.  S.  v.  Green,  3  Mason,  482,  Fed.  Cas.  No.  15,256. 

««  Brinster  v.  Compton,  68  Ala.  299. 

«T  In  re  Bort,  25  Kan.  308,  37  Am.  Rep.  255 ;  McKim  y.  McKim,  12  R.  I. 
462,  34  Am.  Rep.  694;  Ex  parte  Schumpert,  6  Rich.  (S/ C.)  344;  Com.  v. 
Addicks,  5  Bin.  (Pa.)  520;  Patterson  v.  Patterson,  86  Ark.  64,  109  S.  W. 
1168 ;  Turner  v.  Turner,  93  Miss.  167,  46  South.  413 ;  People  ex  rel.  Sinclair 
v.  Sinclair,  91  App.  Div.  322,  86  N.  Y.  Supp.  539  (but  see  Id.,  47  Misc.  Rep. 
230,  95  N.  Y.  Supp.  861);  State  v.  Paine,  4  Humph.  (Tenn.)  523;  State  v. 


§§  125-126)  CUSTODY  OP  CHILDREN 

only  be  in  such  cases  as  this,  where  the  child,  from  its  extreme 
youth  or  sickness,  needs  a  mother's  care,  that  the  court  can  deprive 
the  father  of  the  right  to  the  child's  custody,  where  the  father  can 
properly  care  for  the  child,  and  is  in  every  way  a  fit  person  to  have 
the  charge  of  it,  and  has  not  in  any  way  neglected  the  child  or  relin- 
quished his  rights.  This  is  true  in  contentions  between  father  and 
mother  after  they  have  separated,  as  well  as  in  contentions  between 
the  father  and  strangers.48 

(3)  In  arriving  at  a  determination  as  to  what  is  best  for  the  wel- 
fare and  happiness  of  the  child,  the  court  will  consider  the  ties  of 
nature  and  of  association;49  the  character  and  feelings  of  the  par- 
ties contending  for  the  custody;60  the  age,51  health,52  and  sex  of 
the  child ;  the  moral  or  immoral  surroundings  of  its  life ;  the  bene- 
fits of  education  and  development;  and  the  pecuniary  prospects.53 
All  these  considerations  enter  into  the  judicial  determination.54 

King,  Ga.  Dec.  93,  pt.  1;  Miner  v.  Miner,  11  111.  43;  Anon.,  55  Ala.  428; 
Com.  v.  Demott,  64  Pa.  305,  note;  Chandler  v.  Chandler,  24  Mich.  176;  Scog- 
gins  v.  Scoggins  80  N.  C.  318.  But  see  Hewitt's  Case,  11  Rich.  (S.  C.)  326; 
Carr  v.  Carr,  22  Grat.  (Va.)  168. 

48  See  McKim  v.  McKim,  12  R.  I.  462,  34  Am.  Rep.  694;  Com.  v.  Addicts, 
2  Serg.  &  R.  (Pa.)  174 ;  Com.  v.  Briggs,  16  Pick.  (Mass.)  203 ;  Bennett  v.  Ben- 
nett, 43"  Conn.  313;  Scoggins  v.  Scoggins,  80  N.  C.  318;  Welch  v.  Welch,  33 
Wis.  534 ;  Carr  v.  Carr,  22  Grat.  (Va.)  168.  Where  a  husband  and  wife  have 
separated  because  unable  to  agree,  and  there  is  no  evidence  that  they  are  not 
equally  fit  custodians  of  their  son  five  years  old,  the  father,  by  reason  of  his 
paramount  right  in  law,  will  be  awarded  such  custody.  People  v.  Sinclair, 
47  Misc.  Rep.  230,  95  N.  T.  Supp.  861. 

4»  Thus,  where  the  father  has  allowed  his  child  to  be  cared  for  and 
raised  by  others  until  it  has  become  attached  to  them,  this  fact  will  influence 
the  court  in  determining  whether  it  will,  after  the  lapse  of  years,  give  the 
custody  to  the  father.  "It  is  an  obvious  fact  that  ties  of  blood  weaken,  and 
ties  of  companionship  strengthen,  by  lapse  of  time;  and  the  prosperity  and 
welfare  of  the  child  depend  on  the  number  and  strength  of  these  ties,  as  well 
as  on  the  ability  to  do  all  which  the  promptings  of  these  ties  compel."  Chap- 
sky  v.  Wood,  26  Kan.  650,  40  Am.  Rep.  321.  And  see  Washaw  v.  Gimble,  50 
Ark.  351,  7  S.  W.  389 ;  note  73,  infra. 

BO  Richards  v.  Collins,  45  N.  J.  Eq.  283,  17  Atl.  831,  14  Am.  St.  Rep.  726; 
Sheers  v.  Stein,  75  Wis.  44,  43  N.  W.  728,  5  L.  R.  A.  781 ;  Holmes'  Case,  19 
How.  Prac.  (N.  Y.)  329. 

oiHaskell  v.  Haskell,  152  Mass.  16,  24  N.  E.  859;  McKim  v.  McKim,  12 
R.  I.  462,  34  Am.  Rep.  694;  notes  47,  supra,  and  64,  infra. 

52  Richards  v.  Collins,  45  N.  J.  Eq.  283,  17  Atl.  831,  14  Am.  St.  Rep.  726; 
McKim  v.  McKim,  12  R.  I.  462,  34  Am.  Rep.  694 ;   HUSSEY  v.  WHITING,  145 
Ind.  580,  44  N.  E.  639,  57  Am.  St.  Rep.  220,  Cooley  Gas.  Persons  and  Domestic 
Relations,  186 ;    Gardenhire  v.  Hinds,  1  Head  (Tenn.)  402. 

53  Armstrong  v.  Stone,  9  Grat  (Va.)  102 ;    Lyons  v.  Blenkln,  Jac.  245 ;   Gar- 

54  Marshall  v.  Reams,  32  Fla.  499,  14  South.  95,  37  Am.  St.  Rep.  118.     See 
Slater  v.  Slater,  90  Va.  845,  20  S.  E.  780. 


350  BIGHTS  OF  PARENTS  AND  OF  CHILDREN  (Ch.  10 

Where  the  child  has  reached  the  age  of  discretion,  it  will  often  be 
allowed  to  make  its  own  choice,  and  its  wishes  will  always  be  taken 
into  consideration.65  But  the  choice  of  the  child  is  not  a  control- 
ling consideration.  Welfare  controls  choice,  and  the  court  will 
not  permit  the  choice  of  the  child  to  lead  it  into  an  improper  cus- 
tody.56 •  In  this  connection  the  rights  of  parents  and  guardians 
should  also  be  respected,  and  such  rights  will  not  be  disregarded  by 
the  court  to  gratify  the  mere  wishes  of  a  child,  when  the  parent  or 
guardian  is  a  proper  person  to  be  intrusted  with  its  custody.51 
There  is  no  fixed  age  when  the  discretion  of  a  child  begins,  but 
mental  capacity  is  the  test.58  ' 

In  Cases  of  Divorce 

Though  the  court,  in  case  of  divorce,  is  inclined  so  to  award  the 
custody  of  the  children  to  the  innocent  party,59  it  does  not  follow 
as  a  matter  of  course  that  the  complainant  in  the  divorce  suit  is  en- 
titled to  the  custody  of  the  infant  children.00  The  question  of  the 
custody  of  the  children  is  one  addressed  to  the  sound  discretion  of 
the  court,61  and  there  is  no  absolute  rule  by  which  it  can  be  de- 
termined which  of  the  two  contesting  parties  is  entitled  to  the  cus? 
tody.6*  As  in  other  cases,  the  general  rule  is  that  the  best  inter- 
ests of  the  child  will  determine  its  custody.68  If,  for  instance,  the 

denhire  v.  Hinds,  1  Head  (Tenn.)  402.  But  pecuniary  benefit  is  not  control- 
ling. Dunkin  v.  Seifert,  123  Iowa,  64,  98  N.  W.  558. 

as  Marshall  v.  Reams,  32  Fla.  499,  14  South.  95,  37  Am.  St.  Rep.  118;  In 
re  Goodenough,  19  Wis.  274;  U.  S.  v.  Green,  3  Mason,  482,  Fed.  Cas.  No. 
15,256;  State  v.  Bratton,  15  Am.  Law  Reg.  (N.  S.)  359;  Clark  v.  Bayer,  32 
Ohio  St.  299,  30  Am.  Rep.  593 ;  Brinster  v.  Compton,  68  Ala.  299 ;  Merritt  v. 
Swimley,  82  Va.  433,  3  Am.  St.  Rep.  115 ;  State  v.  Paine,  4  Humph.  (Tenn.) 
523 ;  Shaw  v.  Nachtwey,  43  Iowa,  653 ;  Richards  v.  Collins,  45  N.  J.  Eq.  283, 
17  Atl.  831,  14  Am.  St.  Rep.  726 ;  Hewitt  v.  Long,  76  111.  399. 

so  Marshall  v.  Reams,  32  Fla.  499,  14  South.  95,  37  Am.  St.  Rep.  118. 

6T  Marshall  v.  Reams,  32  Fla.  499,  14  South.  95,  37  Am.  St.  Rep.  118. 

58  Marshall  v.  Reams,  32  Fla.  499,  14  South.  95,  37  Am.  St.  Rep.  118; 
Richards  v.  Collins,  45  N.  J.  Eq.  283,  17  Atl.  831,  14  Am.  St.  Rep.  726. 

so  Caldwell  v.  Caldwell,  141  Iowa,  192,  119  N.  W.  599. 

so  See  Hazelton  v.  Hazel  ton,  162  Mich.  192,  127  N.  W.  297;  Holm  v.  Holm, 
44  Utah,  242,  139  Pac.  937. 

81  Seeley  v.  Seeley,  30  App.  D.  C.  191,  12  Ann.  Oas.  1058,  certiorari  de- 
nied 209  TJ.  S.  544,  28  Sup.  Ct.  570,  52  L.  Ed.  919 ;    Slattery  v.  Slattery,  139 
Iowa,  419,  116  N.  W.  608 ;   Royal  v.  Royal,  167  Ala.  510,  52  South.  735. 

82  Kjellander  v.  Kjellander,  92  Kan.  42,  139  Pac.  1013. 

««  Adams  v.  Adams,  1  Duv.  (Ky.)  167;  Giles  v.  Giles,  30  Neb.  624,  46  N. 
W.  916 ;  Haskell  v.  Haskell,  152  Mass.  16,  24  N.  E.  859 ;  In  re  Bort,  25  Kan. 
308,  37  Am.  Rep.  255;  Lusk  T.  Lusk,  28  Mo.  91;  Welch  v.  Welch,  33  Wis- 
534;  Irwin  v.  Irwin,  96  Ky.  318,  28  S.  W.  664,  and  30  S.  W.  417;  Luck  v. 


§§  125-126)  CUSTODY  OF  CHILDREN  351 

child  is  of  such  tender  years,  or  in  such  delicate  health,  that  it  needs 
a  mother's  care,  particularly  if  it  is  a  girl,  its  custody  will  ordina- 
rily be  awarded  to  the  mother,  at  least  temporarily,  even  where  the 
husband  is  without  fault.04  And  if  one  of  the  parties  is  an  unfit 
person  to  have  the  custody  of  the  children,  and  the  other  is  a  fit 
person,  their  custody  will  be  awarded  to  the  latter.65 

The  decree  in  a  divorce  suit  does  not  permanently  settle  the  right 
to  custody  of  children  in  awarding  the  custody  to  one  of  the  parties. 
A  change  of  circumstances  may  authorize  the  court  to  order  a 
change  of  custody.66  For  instance,  should  the  mother,  to  whom 
the  custody  of  a  child  is  awarded  on  divorce,  afterwards  become  an 
unfit  person  to  be  intrusted  with  the  child,  the  father,  if  a  fit  person, 
might  obtain  the  custody.67  So,  where  the  spouse  to  whom  the  cus- 


,  92  Cal.  653,  28  Pac.  787;  Beyerle  v.  Beyerle,  155  Cal.  266,  100  Pac. 
702  ;  Keesling  v.  Keesling,  42  Ind.  App.  361,  85  N.  E.  837  ;  Wandersee  v.  Wan- 
dersee,  132  Minn.  321,  156  N.  W.  348  ;  Pierce  v.  Pierce,  52  Wash.  679,  101  Pac. 
358;  Kentzler  v.  Kentzler,  3  Wash.  166,  28  Pac.  370,  28  Am.  St.  Rep.  21; 
TJmlauf  v.  Umlauf  ,  128  111.  378,  21  N.  E.  600  ;  In  re  Krauthoff,  191  Mo.  App. 
149,  177  S.  W.  1112;  Cowls  v.  Cowls,  3  Oilman  (111.)  435,  44  Am.  Dec.  708. 
When  necessary  to  promote  the  welfare  of  the  children,  the  court  may  take 
them  away  from  both  parents  and  award  the  custody  to  a  third  person. 
Collins  v.  Collins,  76  Kan.  93,  90  Pac.  809. 

e*  See  the  cases  above  cited.  And  see  Messenger  v.  Messenger,  56  Mo.  329  ; 
Lusk  v.  Lusk,  28  Mo.  91;  Chandler  v.  Chandler,  24  Mich.  176;  Klein  v. 
Klein,  47  Mich.  518,  11  N.  W.  367;  Wann  v.  Wann,  85  Ark.  471,  108  S.  Wk 
1052;  Wills  v.  Wills,  168  Ky.  35,  181  S.  W.  619;  Boxa  v.  Boxa,  92  Neb.  78, 
137  N.  W.  986  ;  Draper  v.  Draper,  68  111.  17.  But  see  Carr  v.  Carr,  22  Grat. 
(Va.)  168;  Welch  v.  Welch,  33  Wis.  534.  In  Weiss  v.  Weiss,  174  Mich.  431, 
140  N.  W.  587,  the  court  held  that,  even  though  the  children  were  very  young 
and  the  mother  a  fit  person,  the  custody  should  be  awarded  according  to  the 
best  interests  of  the  children.  The  wishes  of  the_  parents  is  of  secondary 
consideration,  and  even  comparative  fitness  or  unfitness  is  not  controlling. 

66  irwin  v.  Irwin,  96  Ky.  318,  30  S.  W.  417  ;  Thiesing  v.  Thiesing,  26  S.  W. 
718,  16  Ky.  Law  Rep.  115  ;    Flory  v.  Ostrom,  92  Mich.  622,  52  N.  W.  1038  ; 
Schichtl  v.  Schichtl,  88  Iowa,  210,  55  N.  W.  309;    Blid  v.  Blid,  82  Neb.  294, 
117  N.  W.  700;   Penn  v.  Penn,  37  Okl.  650,  133  Pac.  207;   Miner  v.  Miner,  11 
111.  43;    Cowls  v.  Cowls,  3  Oilman   (111.)  435,  44  Am.  Dec.  708;    Umlauf  v. 
Umlauf,  128  111.  378,  21  N.  E.  600. 

ee  Draper  v.  Draper,  68  111.  17  ;  Oliver  v.  Oliver,  151  Mass.  349,  24  N.  E. 
51.  Compare  Wilkinson  v.  Deming,  80  111.  342,  22  Am.  Rep.  192;  Hayes  v. 
Hayes,  192  Ala.  280,  68  South.  351  ;  Meffert  v.  Meffert,  118  Ark.  582,  177  S. 
W.  1;  McKay  v.  McKay,  77  Or.  14,  149  Pac.  1032;  Beyerle  v.  Beyerle,  155 
Cal.  266,  100  Pac.  702  ;  Morrill  v.  Morrill,  83  Conn.  479,  77  Atl.  1  ;  State  ex 
rel.  Bush  v.  Trahan,  125  La.  312,  51  South.  216.  To  justify  a  change  of  the 
custody,  there  should  be  a  material  change  in  the  circumstances,  making  it 
equitable  that  different  terms  be  imposed.  Kinney  v.  Kinney,  150  Iowa,  225, 
129  N.  W.  826  ;  Julian  v.  Julian,  60  Ind.  App.  520,  111  N.  E.  196. 

67  Morin  v.  Morin,  66  Wash.  312,  119  Pac.  745,  37  L.  R.  A.  (N.   S.)  585, 
where  the  mother  became  insane. 


362  BIGHTS  OP  PARENTS  AND  OF  CHILDREN  (Ch.  10 

tody  is  awarded,  even  though  it  may  have  been  so  awarded  because 
of  the  unfitness  of  the  other,  afterwards  dies,  the  other  may  obtain 
the  custody,  by  showing  that  he  has  become  fit  for  it,  and  that  it 
will  be  for  the  child's  interest.88 

Agreement  as  to  Custody  of  Child 

The  weight  of  authority  seems  to  be  in  favor  of  the  position  that 
an  agreement  entered  into  by  a  father,  for  the  relinquishment  of  his 
right  to  the  custody  of  his  child,  is  void  as  against  public  policy, 
and  will  not  even  bind  him.89  "The  care  and  custody  of  minor  chil- 
dren is  a  personal  trust  in  the  father,  and  he  has  no  general  power 
to  dispose  of  them  to  another."  70  Such  an  agreement,  however,  is 
not  to  be  entirely  ignored.  "It  is  to  be  considered,  not  for  the  pur- 
pose of  fixing  the  rights  of  the  parties,  but  for  the  purpose  of  shed- 
ding light  upon  their  actual  relations  and  feelings  for  the  infant, 
atid  assisting  the  exercise  of  a  wise  discretion  by  the  court  as  to 
what  disposition  should  be  made  of  it  for  the  promotion  of  its  own 
welfare."  T1  In  other  words,  although  the  law  does  not  countenance 

«s  Bryan  v.  Lyon,  104  Ind.  227,  3  N.  E.  880,  54  Am.  Rep.  309.  And  see 
Schammel  v.  Schammel,  105  Cat  258,  38  Pac.  729;  Purdy  v.  Ernst,  93  Kan. 
157,  143  Pac.  429. 

«•  Queen  v.  Smith,  22  Law  J.  Q.  B.  116;  In  re  Edwards,  42  Law  J.  Q.  B. 
99;  Hernandez  v.  Thomas,  50  Fla.  522,  39  South.  641,  2  L.  R,  A.  (N.  S.)  203, 
111  Am.  St.  Rep.  137,  7  Ann.  Cas.  446;  Cormack  v.  Marshall,  122  111.  App. 
208 ;  In  re  Galleher,  2  Cal.  App.  364,  84  Pac.  352 ;  Oarey  v.  Hertel,  37  Wash, 
27,  79  Pac.  482 ;  Wood  v.  Shaw,  92  Kan.  70,  139  Pac.  1165 ;  Marks  v.  Wooster 
<Mo.  App.)  199  S.  W.  446;  State  v.  Baldwin,  5  N.  J.  Eq.  454,  45  Am.  Dec. 
397;-  Chapsky  v.  Wood,  26  Kan.  650,  40  Am.  Rep.  321;  Cook  v.  Bybee,  24 
Tex.  278;  Brooke  v.  Logan,  112  Ind.  183,  13  N.  E.  669,  2  Am.  St.  Rep.  177; 
Stapleton  v.  Poynter,  111  Ky.  264,  62  S.  W.  730,  53  L.  R.  A.  784,  98  Am.  SL 
.Rep.  411 ;  Washaw  v.  Gimble,  50  Ark.  351,  7  S.  W.  389 ;  State  v.  Libbey,  44 
N.  H.  321,  82  Am.  Dec.  223.  This  principle  prevents  a  father  from  making 
an  irrevocable  agreement  with  his  wife,  on  separation,  by  which  he  relin- 
quishes to  her  the  custody  of  their  children.  People  v.  Mercein,  3  Hill  (X. 
Y.)  410,  38  Am.  Dec.  644 ;  Johnson  v.  Terry,  34  Conn.  259.  Where  the  father 
and  mother  are  separated,  the  mother  cannot  by  written  agreement  vest  the 
custody  of  the  child  in  the  maternal  grandmother  as  against  the  father.  Ma- 
•son  v.  Williams,  165  Ky.  331,  176  S.  W.  1171.  And,  to  the  same  effect,  see 
Long  v.  Smith  (Tex.  Civ.  App.)  162  S.  W.  25;  Bailey  v.  Gaston,  8  Ala.  App. 
476,  62  South.  1017.  In  many  states  by  statute  the  father  cannot  by  agree- 
ment transfer  the  custody  to  a  third  person  as  against  the  mother.  See  Zink 
r.  Milner,  39  Okl.  347,  135  Pac.  1,  applying  Comp.  Laws  Okl.  1909,  §  4899. 
.See,  also,  Comp.  Laws  N.  D.  1913,  §  4424.  An  agreement  for  custody,  being 
revocable,  is  revoked  on  the  death  of  the  parent  making  it,  if  the  other  par- 
ent survives.  Smith  v.  Young,  136  Mo.  App.  65,  117  S.  W.  628. 

TO  State  v.  Baldwin,  5  N.  J.  Eq.  454,  45  Am.  Dec.  397. 

7i  Weir  v.  Marley,  99  Mo.  484,  12  S.  W.  798,  6  L.  R,  A.  672. 


§§  125-126)  CUSTODY  OP   CHILDREN  353 

agreements  whereby  a  father  seeks  to  transfer  to  another  the  cus- 
tody of  his  child,  such  agreements,  when  carried  out  by  the  parties, 
may  have  the  indirect  effect  of  preventing  the  father  from  reassert- 
ing his  right,  the  interests  of  the  child  in  such  cases  being  the  con- 
trolling consideration.72 

It  has  frequently  been  held  that  the  custody  of  a  child  will  not 
be  restored  to  a  parent  who  has  transferred  its  custody  to  another, 
where  the  child,  by  being  thus  separated  from  him  for  years,  has 
transferred  its  interests  and  affections  to  its  adopted  home,  and  be- 
come estranged  from  its  parent,  on  the  ground  that  it  would  be  a 
serious  injury  to  the  child  to  sever  the  ties  that  bind  it  to  its  adopt- 
ed home  and  its  adopted  parents,  and  compel  it  to  return.78  "After 
the  affections  of  both  child  and  adopted  parent  become  engaged, 
and  a  state  of  things  has  arisen  which  cannot  be  altered  without 
risking  the  happiness  of  the  child,  and  the  father  wants  to  reclaim 
it,  the  better  opinion  is  that  he  is  not  in  a  position  to  have  the  in- 
terference of  the  court  in  his  favor.  His  parental  right  must  yield 
to  the  feelings,  interests,  and  rights  of  others  acquired  with  his  con- 
sent." 74 

Some  of  the  courts,  contrary  to  the  view  above  stated,  have  held 
that  a  parent  can,  by  agreement,  surrender  the  custody  of  his  infant 
child  so  as  to  make  the  custody  of  him  to  whom  he  surrenders  it  le- 
gal as  against  him.75  Even  in  these  jurisdictions,  however,  a  parent 

T2  Fletcher  v.  Hickman,  50  W.  Va.  244,  40  S.  E.  371,  55  L.  R.  A.  896,  88 
Am.  St.  Rep.  862. 

7  s  Weir  v.  Marley,  99  Mo.  484,  12  S.  W.  798,  6  L.  R.  A.  672;  Chapsky  v. 
Wood,  26  Kan.  650,  40  Am.  Rep.  321 ;  Washaw  v.  Gimble,  50  Ark.  351,  7  S.  W. 
389 ;  Richards  v.  Collins,  45  N.  J.  Eq.  283,  17  Atl.  831,  14  Am.  St.  Rep.  726 ; 
Bently  v.  Terry,  59  Ga.  555,  27  Am.  Rep.  399 ;  Merritt  v.  Swimley,  82  Va.  433, 
3  Am.  St.  Rep.  115;  Bonnett  v.  Bonnett,  61  Iowa,  199,  16  N.  W.  91,  47  Am. 
Rep.  810;  Sheers  v.  Stein,  75  Wis.  44,  43  N.  W.  728,  5  L.  R;  A.  781;  Hoxsie 
v.  Potter,  16  R.  I.  374,  17  Atl.  129 ;  In  re  Murphy,  12  How.  Prac.  (N.  Y.)  513 ; 
Clark  v.  Bayer,  32  Ohio  St  299,  30  Am.  Rep.  593 ;  Parker  v,  Wiggins  (Tex. 
Civ.  App.)  86  S.  W.  788. 

74  Clark  v.  Bayer,  32  Ohio  St.  299,  30  Am.  Rep.  593. 

75  Bonnett  v.  Bonnett,  61  Iowa,  199,  16  N.  W.  91,  47  Am.  Rep.  810;    Miller 
v.  Miller,  123  Iowa,  165,  98  N.  W.  631.    And  see  Plahn  v.  Dribred,  36  Tex. 
Civ.  App.  600,  83  S.  W.  867;    Bently  v.  Terry,  59  Ga.  555,  27  Am,  Rep.  399; 
Eaves  v.  Fears,  131  Ga.  820,  64  S.  E.  269 ;   Wilkinson  v.  Lee,  138  Ga.  360,  75 
S.  E.  477,  42  L.  R.  A.   (N.  S.)  1013 ;    State  v.  Smith,  6  Greenl.  (Me.)  463,  20 
Am.  Dec.  324;    McDowle's  Case,  8  Johns.  (N.  Y.)  328;    State  v.  Barrett,  45 
W.  H.  15 ;    Curtis  v.  Curtis,  5  Gray  (Mass.)  535 ;    Dumain  v.  Gwynne,  10  Al- 
len (Mass.)  270;   Com.  v.  Barney,  4  Brewst.  (Pa.)  409;  In  re  Goodenough,  19 
Wis.  274. 

TIFF.P.&  D.REL.(3o  ED.)— 23 


354  BIGHTS  OF  PARENTS  AND  OF  CHILDREN  (Ch.  10 

cannot,  by  surrendering  the  custody  of  his  child  to  another,  prevent 
the  courts  from  changing  the  custody  where  the  welfare  of  the 
child  demands  it.T* 

As  has  been  shown  in  a  previous  chapter,  statutes  have  been 
enacted  in  most  states  by  which  parents  may  consent  to  the  adop- 
tion of  their  children  by  another.  Here,  of  course,  the  legal  adop- 
tion is  binding.77  So,  as  will  be  seen  in  a  subsequent  chapter,  par- 
ents may  bind  out  their  children  as  apprentices.78 

PARENT'S   RIGHT  TO   CHILD'S   SERVICES   AND 
EARNINGS 

127.  The  father,  and,  by  the  weight  of  authority,  the  mother  on  his 
death,  is  entitled  to  a  minor  child's  services  and  earnings, 
while  the  child  lives  with  and  is  supported  by  them,  and 
,  has  not  been  emancipated.  When  he  has  been  emancipat- 
ed, however,  this  right  ceases,  and  with  it,  of  course,  all 
rights  which  are  dependent  upon  it. 

So  long  as  a  minor  child  lives  with  or  is  supported  by  its  parents, 
and  has  not  been  emancipated,78  the  father  is  entitled  to  its  services 
and  earnings.80  The  right  to  a  child's  services  is  generally  said-  to 

™  Bonnett  v.  Bonnett,  61  Iowa,  199,  16  N.  W.  91,  47  Am.  Rep.  810;   Chap- 
sky  v.  Wood,  26  Kan.  650,  40  Am.  Rep.  321. 
"  Ante,  p.  310. 
i «  Post,  p.   571. 

t*  As  to  the  emancipation  of  children,  see  post,  p.  358. 
so  1  Bl.  Comm.  453;   Benson  v.  Remington,  2  Mass.  113;  Plummer  v.  Webb, 

4  Mason,  380,  Fed.  Cas.  No.  11,233;    Gale  v.  Parrott,  1  N.  H.  28;    Shute  v. 
Dorr,  5  Wend.  (N.  Y.)  204;   Lord  v.  Poor,  23  Me.  569;   Magee  v.  Magee,  65  111. 
255;    Galligan  v.  Woonsqcket  St.  Ry.  Co.,  27  R.  I.  363,  62  Atl.  376;    Allen 
v.  Allen,  60  Mich.  635,  27  N.  W.  702 ;    Sweet  v.  Crane,  39  Okl.  248,  134  Pac. 
1112  (applying  Comp.  Laws  Okl.  1909,  §§  4S99,  4911,  4912);    Royal  v.  Grant, 

5  Ga.  App.  643,  63  S.  E.  708 ;    Kenure  v.  Brainerd  &  Armstrong  Co.,  88  Conn. 
265,  91  Atl.  185;    Fuller  v.  Blair,   104  Me.  469,   72  Atl.  182;    Freeman  v. 
Shaw,  173  Mich.  262,  139  N.  W.  66 ;   Donk  Bros.  Coal  &  Coke  Co.  v.  Retzloff, 
229  111.  194,  82  N.  E.  214;    Southern  Ry.  Co.  v.  King  Bros.  &  Co.,  136  Ga. 
173,  70  S.  E.  1109;    Gilman  v.  G.  W.  Dart  Hardware  Co.,  42  Mont  96,  111 
Pac.  550.    In  an  action  by  a  minor  for  personal  injuries,  he  cannot  recover 
for  loss   of  wages  during  minority,  unless  it  appears   that  the  parent  has 
lost  the  right  to  his  child's  earnings.     Orr  v.  Wahlfeld  Mfg,  Co.,  179  111. 
App.  235.     If  a  minor,  with  his  parent's  consent,  enlists  in  the  army  or 
navy,  the  parent's  right  of  control  is  suspended,  and  all  pay,  bounties,  and 
prize  moneys  belong  to  the  minor,  and  not  to  the  parent     Halliday  v.  Miller, 
29  W.  Va.  424,  1  S.  E.  821,  6  Am.  St  Rep.  653 ;    Gapen  v.  Gapen,  41  W.  Va. 


§  127)     PARENT'S  EIGHT  TO  CHILD'S  SERVICES  AND  EARNINGS      355 

be  based  on  the  parent's  duty  to  support  the  child.81  Thus  it  has 
been  said  that  the  parent's  right  to  the  services  and  earnings  of 
his  child  is  contingent  on  his  actually  providing  support  for  the 
child  and  retaining  parental  control  over  him,  and  if  he  ceases  to 
provide  support,  or  voluntarily  or  by  operation  of  law  releases  his 
parental  authority,  his  right  to  the  child's  services  and  earnings 
ceases.82  But  the  right  is  recognized  even  in  those  jurisdictions 
where  it  is  denied  that  there  is  any  legal  duty  to  support.  What- 
ever may  be  the  foundation  of  this  right  of  the  parent,  its  existence 
is  well  settled.  There  is  some  authority  to  the  effect  that  the  right 
to  a  child's  services  and  earnings  does  not  vest  in  the  mother,  even 
when  the  father  has  deserted  her  and  the  child,  or  is  dead ;  that  the 
mother,  even  under  such  circumstances  as  these,  is  entitled  only 
to  reverence  and  respect,  and  has  no  authority  over  the  child,  or 
right  to  its  services.83  This,  however,  is  a  mistake,  due  perhaps, 
to  some  extent,  to  following,  without  reason  or  other  authority, 
the  dictum  of  Blackstone  and  other  old  writers  and  judges  to  that 
effect,  and  to  a  failure  to  recognize  the  fact  that  there  is  no  longer 
any  such  principle  or  doctrine  as  the  old  feudal  doctrine,  "which, 
requiring,  as  it  did,  the  abject  subjection  and  servitude  of  the  wife, 
was  unable  to  recognize  the  supremacy  of  the  mother."  84  By  the 
overwhelming  weight  of  modern  authority,  a  widowed  mother  is 
entitled  to  the  services  and  earnings  of  a  minor  child  to  the  same 

422,  23  S.  E.  579 ;  Taylor  v.  Mechanics'  Sav.  Bank,  97  Mass.  345 ;  Banks  v. 
Conant,  14  Allen  (Mass.)  497;  Magee  v.  Magee,  65  111.  255 ;  Cadwell  v.  Sher- 
man, 45  111.  348 ;  Baker  v.  Baker,  41  Vt.  55 ;  Mears  v.  Bickford,  55  Me.  528. 
Contra,  Bundy  v.  T>odson,  28  Ind.  295 ;  Ginn  v.  Ginn,  38  Ind.  526. 

8i2  Kent,  Comm.  193,  Jenness  v.  Emerson,  15  N.  H.  488;  Wheeler  v. 
State,  51  Ind.  App.  622,  100  N.  E.  25 ;  Doyle  v.  Carney,  190  N.  Y.  386,  83  N. 
E.  37 ;  Franklin  v.  Butcher,  144  Mo.  App.  660,  129  S.  W.  428 ;  BIGGS  v.  ST. 
LOUIS,  I.  M.  &  S.  BY.  CO.,  91  Ark.  122,  120  S.  W.  970,  Cooley  Cas.  Persons 
and  Domestic  Relations,  190. 

82  Chaloux  v.  International  Paper  Co.,  75  N.  H.  281,  73  Atl.  301,  139  Am. 
St.  Rep.  690.  In  Canovar  v.  Cooper,  3  Barb.  (N.  Y.)  117,  it  was  said  by 
Strong,  P.  J.:  "The  reason  why  parents  are  entitled  to  the  services  of  their 
minor  children,  usually  given,  is  that  which  I  have  already  mentioned — the 
liability  to  support  them.  But,  in  my  opinion,  a  much  stronger  reason,  and 
one  more  consonant  with  the  feelings  and  obligations  of  parent  and  child, 
is  that  it  gives  the  parent  the  control  over  the  actions  of  his  children,  when 
they  are  incapable  of  judging  for  themselves,  and  thus  has  a  tendency  to 
save  them  from  the  effects  of  idleness  or  imprudence." 

ss  Pray  v.  Gorham,  31  Me.  240 ;  Com.  v.  Murray,  4  Bin.  (Pa.)  487,  5  Am. 
Dec.  412;  Fairmount  &  A.  St.  Pass.  Ry.  Co.  v.  Stutler,  54  Pa.  375,  93  Am 
Dec.  714. 

s*  Hammond  v.  Corbett,  50  N.  H.  501,  9  Am.  Rep.  288. 


356  BIGHTS  OF  PARENTS  AND  OF  CHILDREN  (Ch.  10 

extent  as  the  father  would  be  if  living.85  The  same  rule  applies 
where  a  wife  is  deserted  by  her  husband,  or  he  is  imprisoned,  and 
she  is  left  to  maintain  her  children,  for  the  same  reasons  for  the 
rule  apply  in  both  cases.86  And  generally  a  person  who  has  defi- 
nitely assumed  to  stand  in  loco  parentis  to  a  child  is  entitled  to  his 
services.87 

Since  a  parent  is  thus  entitled  to  the  earnings  of  his  minor  child, 
it  follows  that  where  he  has  not  expressly  or  impliedly  emancipated 
the  child,  or  consented  to  its  receiving  and  enjoying  its  own  earn- 
ings, as  hereafter  explained,88  he  may  maintain  an  action  for  the 
child's  wages  against  one  who  has  employed  the  child,  and  the  ac- 
tion is  properly  brought  in  the  parent's  name  alone.89  It  has  been 
held  that  the  right  to  the  child's  services  is  personal  to  the  parent, 
like  the  right  of  custody,  and  cannot  be  assigned  to  another,  as  by 
binding  the  child  out  at  service.90  But  there  are  other  decisions  in 
favor  of  allowing  a  parent  to  assign  his  child's  services  for  a  con- 
sideration to  inure  to  himself.91 

In  the  absence  of  emancipation,  express  or  implied,  a  child  cannot 
make  any  contract  with  another  to  serve  him  which  will  be  binding 


so  Hammond  v.  Corbett,  50  N.  H.  501,  9  Am.  Rep.  288 ;  Osborn  v.  Allen, 
26  N.  J.  Law,  388 ;  Matthewson  v.  Perry,  37  Conn.  435,  9  Am.  Rep.  339 ;  Scam- 
ell  v.  St  Louis  Transit  Co.,  103  Mo.  App.  504,  77  S.  W.  1021 ;  Nightingale  v. 
Withington,  15  Mass.  272,  8  Am.  Dec.  101 ;  Horgan  v.  Pacific  Mills,  158  Mass. 
402,  33  N.  E.  581,  35  Am.  St.  Rep.  504;  Kennedy  v.  New  York  Cent.  &  H. 
R.  R.  Co.,  35  Hun  (N.  Y.)  186 ;  Gray  v.  Durland,  50  Barb.  (N.  Y.)  100 ;  Bal- 
lard  v.  St.  Albans  Advertiser  Co.,  52  Vt.  325;  Hollingsworth  v.  Swedenborg, 
49  Ind.  378,  19  Am.  Rep.  687;  State  v.  Baltimore  &  O.  R.  Co.,  24  Md.  84, 
87  Am.  Dec.  600 ;  Cain  v.  Devitt,  8  Iowa,  116 ;  Dufleld  v.  Cross,  12  111.  397 ; 
Snediker  v.  Everingham,  27  N.  J.  Law,  143;  Campbell  v.  Campbell,  11  N.  J. 
Eq.  272 ;  Franklin  v.  Butcher,  144  Mo.  App.  660,  129  S.  W.  428 ;  Trinity  Coun- 
ty Lumber  Co.  v.  Conner  (Tex.  Civ.  App.)  187  S.  W.  1022. 

8«  See  Wodell  v.  Coggeshall,  2  Mete.  (Mass.)  89,  35  Am.  Dec.  391 ;  Chilson 
v.  Philips,  1  Vt.  41;  Winslow  v.  State,  92  Ala.  78,  9  South.  728;  Newton  v. 
Cooper,  13  Ga.  App.  458,  79  S.  E.  356;  Briscoe  v.  Price,  275  111.  63,  113  N. 
E.  881 ;  Trinity  County  Lumber  Co.  v.  Conner  (Tex.  Civ.  App.)  187  S.  W. 
1022;  Savannah,  F.  &  W.  Ry.  Co.  v.  Smith,  93  Ga.  742,  21  S.  E.  157. 

ST  Stone  v.  Pulsipher,  16  Vt.  428;    Schrimpf  v.  Settegast,  36  Tex.  296. 

«8  Post,  p.  358. 

8»  Shute  v.  Dorr,  5  Wend.  (N.  Y.)  204;  Dufleld  v.  Cross.  12  HI.  397;  Hol- 
lingsworth v.  Swedenborg,  49  Ind.  378,  19  Am.  Rep.  687 ;  Monaghan  v.  School 
Dist,  38  Wis.  100. 

»o  Musgrove  v.  Kornegay,  52  N.  C.  71  (collecting  cases) ;  U.  S.  v.  Bain- 
bridge,  1  Mason,  71,  Fed.  Cas.  No.  14,497. 

»i  Day  v.  Everett,  7  Mass.  145;  State  v.  Barrett,  45  N.  H.  15;  Johnson  v. 
Bicknell,  C3  Me.  154;  Ford  v.  McVay,  55  111.  119. 


§  127)     PARENT'S  RIGHT  TO  CHILD'S  SERVICES  AND  EARNINGS      357 

on  the  father;  nor  can  he  give  a  valid  discharge  for  his  wages.  One 
who,  under  such  circumstances,  pays  a  minor  for  services,  or  for  in- 
juries resulting  in  loss  of  service,  does  so  at  his  peril;  and,  if  the 
father  has  not  relinquished  his  right  to  such  services,  the  payment 
will  be  no  defense  in  an  action  by  the  father.92  But  where  the 
father  allows  his  minor  son  to  work  for  another  and  receive  his 
wages,,  the  payment  to  the  son  is  a  good  payment  until  the  agree- 
ment is  rescinded.93  The  same  principle  applies  where  an  appren- 
tice is  employed  without  his  master's  consent.94  The  father,  where 
his  child  is  employed  without  his  consent,  may  ratify  the  contract 
made  with  the  child,  and  recover  under  it;  or  he  may  repudiate  it, 
and  recover  the  value  of  the  services.95 

Since  the  earnings  of  a  minor  unemancipated  child  belong  to  the 
father,  they  may  be  reached  by  the  father's  creditors,  and  subjected 
to  the  payment  of  their  claims,  just  like  any  other  property.98  And 
the  same  is  true  of  property  purchased  with  the  child's  earnings 
It  was  held  in  a  late  Texas  case,  for  instance,  that  land  bought  by 
a  mother  with  the  wages  given  her  by  her  son,  who  was  not  eman- 
cipated, was  subject  to  the  claims  of  the  father's  creditors.97 

When  a  child  is  emancipated — that  is,  when  he  is  released  from 
parental  control,  either  by  the  consent  of  the  parent  or  by  operation 
of  law,  including  cases  in  which  he  is  deserted — the  parent's  right 
to  the  child's  services  and  earnings  ceases,  and  with  it,  of  course, 
all  rights,  duties,  and  liabilities  which  are  dependent  upon  its  ex- 
istence also  cease.98 

»2  White  v.  Henry,  24  Me.  531;  Weeks  v.  Holmes,  12  Gush.  (Mass.)  215; 
Horgan  v.  Pacific  Mills,  158  Mass.  402,  33  N.  E.  581,  35  Am.  St.  Rep.  504; 
Sherlock  v.  Kimmell,  75  Mo.  77;  Dunn  v.  Altman,  50  Mo.  App.  231. 

93  Daniel  v.  Atlantic  Coast  Line  R.  Co.,  171  N.  C.  23,  86  S.  E.  174.  And 
see  Ping  Min.  &  Mill.  Co.  v.  Grant,  68  Kan.  732,  75  Pac.  1044,  construing 
the  Kansas  statute  (Gen.  St.  1901,  §  4185).  Under  Domestic  Relations  Law 
(Consol.  Laws,  N.  Y.  c.  14)  §  72,  in  the  absence  of  notice  from  the  parent,  a 
payment  of  wages  to  the  minor  is  a  good  payment.  Langer  v.  Kaufman,  94 
Misc.  Rep.  216,  157  N.  Y.  Supp.  825.  And  see  Comp.  Laws  N.  D.  1913,  §  4437. 

»4  James  v.  Leroy,  6  Johns.  (N.  Y.)  274;  Bowes  v.  Tibbets,  7  Me.  (Greenl.) 
457 ;  Munsey  v.  Goodwin,  3  N.  H.  272. 

95  Sherlock  v.  Kimmell,  75  Mo.  77. 

96Atwood  v.  Holcomb,  39  Conn.  270,  12  Am.  Rep.  386;  Harper  v.  Utsey 
(Tex.  Civ.  App.)  97  S.  W.  508;  Beaver  v.  Bare,  104  Pa.  58,  49  Am.  Rep.  567; 
Dick  v.  Grissom,  Freem.  Ch.  (Miss.)  428 ;  Doe  v.  Reid,  53  N.  C.  377 ;  Schuster 
v.  Bauman  Jewelry  Co.,  79  Tex.  179,  15  S.  W.  259,  23  Am.  St.  Rep.  327. 

97  Schuster  v.  Bauman  Jewelry  Co.,  79  Tex.  179,  15  S.  W.  259,  23  Am.  St. 
Rep.  327. 

98  Post,  p.  398.    Winslow  v.  State,  92  Ala.  78,  9  South.  728;   Southern  Ry. 
Co.  v.  Flemister,  120  Ga.  524,  48  S.  E.  160. 


358  BIGHTS  OF  PARENTS  AND  OF  CHILDREN  (Ch.  10 

EMANCIPATION  OF  CHILDREN 

128.  A  child  may  be  released  from  parental  control,  and  become 

entitled  to  his  earnings,  in  which  event  he  is  said  to  be 
emancipated. 

129.  Emancipation  may  be  effected 

(a)  By  the  consent  of  the  parent,  evidenced  by  written  or  oral 

agreement,  or  gathered  from  the  circumstances. 

(b)  By  operation  of  law — 

(1)  Where  the  parent  abandons  or  fails  to  support  the  child. 

(2)  Where  the  child  contracts  a  valid  marriage,  either  with 

or  without  the  parent's  consent. 

(3)  Where  the  child  attains  his  majority,  which  is  at  21 

years,  or,  in  some  jurisdictions,  in  the  case  of  females, 
18  years. 

(c)  A  parent  who,  by  his  conduct,  leads  an  employer  of  a  child 

to  believe  that  the  child  has  a  right  to  his  earnings,  and  to 
pay  the  child,  is  concluded  by  the  payment,  on  the  equita- 
ble principle  of  estoppel. 

130.  The  emancipation,  if  without  consideration,  may  be  revoked 

before  it  is  acted  upon  by  the  child,  but  not  afterwards.  If 
supported  by  a  valuable  consideration,  or,  at  common  law, 
if  it  is  under  seal,  it  cannot  be  revoked. 

131.  Emancipation,  as  regards  future  services  and  earnings,  is  valid 

as  against  creditors  of  the  parent. 

A  child  may  be  released  from  parental  control,  and  become  en- 
titled to  his  earnings,  or,  in  other  words,  he  may  become  emancipat- 
ed, either  by  the  consent  of  his  parent,  or  by  operation  of  law  with- 
out such  consent."  The  etfect  of  emancipation  is  to  deprive  the 
parent  of  all  power  of  control  over  the  child,  so  long  as  the  eman- 

98  Emancipation,  used  in  a  technical  sense,  means  the  freeing  of  the  child 
from  all  care,  custody,  and  control,  and  from  all  claim  of  services.  Wabash 
R.  Co.  v.  McDoniels,  183  Ind.  104,  107  N.  E.  291.  Emancipation  of  the  child 
is  the  relinquishment  by  the  parent  of  all  control  and  authority  over  the 
child,  conferring  on  the  child  the  right  to  his  earnings,  and  extinguishing  the 
parent's  legal  duty  to  maintain  and  support  the  child.  ROUNDS  BROS.  v. 
McDANIEL,  133  Ky.  669,  118  S.  W.  956,  134  Am.  St.  Rep.  482,  19  Ann.  Cas.  326, 
Cooley  Cas.  Persons  and  Domestic  Relations,  193.  A  parent  who  has  emanci- 
pated his  child  is  not  liable  to  a  third  person  for  board  of  the  child.  Holland 
v.  Hartley,  171  N.  C.  376,  88  S.  E.  507. 


§§  128-131)  EMANCIPATION  OF   CHILDREN  359 

cipation  continues.  The  child  becomes  entitled  to  his  time  and  his 
earnings,  and  to  property  purchased  with  his  earnings,  free  from 
any  claims  of  his  parent,  or  of  his  parent's  creditors,1  and,  on  his 
death,  his  earnings  pass  to  his  administrator.2 

Not  only  may  a  parent  emancipate  his  child,  so  as  to  entitle  it  to 
receive  its  earnings  from  third  persons,  but  "emancipation  may  be 
implied  even  when  the  minor  resides  at  home  and  works  for  his 
father,  from  a  promise  on  the  part  of  the  father  to  pay  him  for  his 
services  during  his  minority,  so  that  the  minor  may  maintain  an 
action  against  the  father  even  for  such  services."  8  Because  of  the 
relation,  the  presumption  is  against  any  such  contract,  and  the 
child  must  show  affirmatively  that  there  was  an  understanding  that 
compensation  should  be  paid. 

How  Emancipation  may  be  Effected — By  Consent  of  Parent 

Emancipation  may  be  effected  by  the  consent  of  the  parent,  or  it 
may  be  effected  by  operation  of  law  without  his  consent.  The 
clearest  case  of  emancipation  by  consent  is  where  the  child  can 
show  an  express  written  or  oral  agreement  with  the  parent.4  Here 

lAtwood  v.  Holcomb,  39  Conn.  270,  12  Am.  Rep.  386;  Shute  v.  Dorr,  5 
Wend.  (N.  Y.)  204;  Burlingame  v.  Burlingame,  7  Cow.  (N.  Y.)  92;  Kain  v. 
Larkin,  131  N.  Y.  300,  30  N.  E.  105 ;  Woodward  v.  Donnell,  146  Mo.  App.  119, 
123  S.  W.  1004 ;  Revel  v,  Pruitt,  42  Okl.  696,  142  Pac.  1019 ;  Kenure  v.  Brain- 
erd  &  Armstrong  Co.,  88  Conn.  265,  91  Atl.  185 ;  Torrens  v.  Campbell,  74  Pa. 
470;  Beaver  v.  Bare,  104  Pa.  58,  49  Am.  Rep.  567;  Partridge  v.  Arnold,  73 
111.  600;  Snediker  v.  Everingham,  27  N.  J.  Law,  143;  Trapnell  v.  Conklyn, 
37  W.  Va.  242,  16  S.  E.  570,  38  Am.  St.  Rep.  30 ;  Gale  v.  Parrot,  1  N.  H.  28 ; 
Hall  v.  Hall,  44  N.  H.  293 ;  Jenney  v.  Alden,  12  Mass.  375 ;  Nightingale  v. 
Withington,  15  Mass.  272,  8  Am.  Dec.  101 ;  Whiting  v.  Earle,  3  Pick.  (Mass.) 
201,  15  Am.  Dec.  207 ;  Morse  v.  Welton,  6  Conn.  547,  16  Am.  Dec.  73 ;  Chase 
v.  Elkins,  2  Vt.  290;  Varney  v.  Young,  11  Vt.  258;  Tillotson  v.  McCrillis, 
Id.  477 ;  Wilson  v.  McMillan,  62  Ga.  16,  35  Am.  Rep.  115 ;  Wambold  v.  Vick, 
50  Wis.  456,  7  N.  W.  438. 

2  Smith  v.  Knowlton,  11  N.  H.  191 ;  Dierker  v.  Hess,  54  Mo.  246. 

3  Wood,  Mast.  &  Serv.  §  25 ;    Wilson  v.  McMillan,  62  Ga.  16,  35  Am.  Rep. 
115;    Hall  v.  Hall,  44  N.  H.  293;    Beaver  v.  Bare,  104  Pa.  58,  49  Am.  Rep. 
567;   McCloskey  v.  Cyphert,  27  Pa.  220;    Steel  v.  Steel,  12  Pa.  64;    Dierker 
v.  Hess,  54  Mo.  246;    Donegan  v.  Davis,  66  Ala.  362;    Sword  v.  Keith,  31 
Mich.  247 ;    Sammon  v.  Wood,  107  Mich.  506,  65  N.  W.  529. 

*  Bristor  v.  Chicago  &  N.  W.  Ry.  Co.,  128  Iowa,  479,  104  N.  W.  487;  Brosius 
v.  Barker,  154  Mo.  App.  657,  136  S.  W.  18;  ROUNDS  BROS.  v.  McDANIEL, 
133  Ky.  669, 118  S.  W.  956,  134  Am.  St.  Rep.  482, 19  Ann.  Cas.  326,  Cooley  Cas. 
Persons  and  Domestic  Relations,  193 ;  Abbott  v.  Converse,  4  Allen  (Mass.)  530 ; 
Fox  v.  Schumann,  191  Mich.  331,  158  N.  W.  168;  Holland  v.  Hartley,  171 
N..C.  376,  88  S.  E.  507.  Emancipation  is  express,  if  with  the  consent  of  the 
parent  disabilities  are  removed  by  the  court,  under  Kirby's  Dig.  Ark.  §  1309. 
or  by  contract  for  valuable  consideration.  In  re  Riff  (D.  C.)  205  Fed.  406.  On 


360  BIGHTS  OF  PARENTS  AND  OF  CHILDREN  (Ch.  10 

there  can  be  no  difficulty.  Emancipation  by  consent  ma^alsc,  like 
any  other  agreement,  be  implied  as  a  matter  of  fact  from  the  con- 
duct of  the  parties.8  No  particular  act  or  ceremony  is  necessary 
to  constitute  emancipation.  It  may  be  established  by  direct  evi- 
dence, or  implied  from  circumstances;  and  it  may,  as  has  already 
been  seen,6  be  implied  as  well  when  the  child  continues  to  reside 
at  home  as  when  he  lives  elsewhere.  Like  any  other  fact,  its  exist- 
ence or  nonexistence  is  to  be  determined  by  all  the  circumstances  of 
the  particular  case.T 

Same — By  Operation  of  Law 

Emancipation  may  also  be  effected  by  operation  of  law,  and  even 
against  the  will  of  the  parent.  It  is  so  effected  by  the  valid  mar- 
riage of  the  child.8  So,  where  a  child  reaches  his  majority,  the  par- 

the  death  of  the  father,  the  mother  may  emancipate  the  child.  Campbell  v. 
Campbell,  11  N.  J.  Eq.  268.  An  oral  agreement  may,  of  course,  be  unenforce- 
able, because  within  the  statute  of  frauds.  Shute  v.  Dorr,  5  Wend.  (N.  Y.)  204.* 

5  Hall  v.  Hall,  44  N.  H.  293 ;  Atwood  v.  Holcomb,  39  Conn.  270,  12  Am. 
Rep.  386 ;  Chase  v.  Smith,  5  Vt.  556 ;  Kain  v.  Larkin,  131  N.  Y.  300,  30  N. 
E.  105;  Abbott  v.  Converse,  4  Allen  (Mass.)  530;  George  Adams  &  Burke 
Co.  v.  Cook,  82  Neb.  684,  118  N.  W.  662;  Fox  v.  Schumann,  191  Mich.  331, 
158  N.  W.  168 ;  Merithew  v.  Ellis,  116  Me.  468,  102  Atl.  301,  2  A.  L.  R.  1429 ; 
Longhofer  v.  Herbel,  83  Kan.  278,  111  Pac.  483;  Brosius  v.  Barker,  154  Mo. 
App.  657,  136  S.  W.  18;  ROUNDS  BROS.  v.  McDANIEL,  133  Ky.  669,  118  S. 
W.  956,  134  Am.  St.  Rep.  482,  19  Ann.  Cas.  326,  Cooley  Cns.  Persons  and  Do- 
mestic Relations,  193 ;  Donk  Bros.  Coal  &  Coke  Co.  v.  Retzloff,  229  111.  194,  82 
N.  E.  214 ;  Weese  v.  Yokum,  62  W.  Va.  550,  59  S.  E.  514. 

8  Supra,  note,  3. 

T  Canovar  v.  Cooper,  3  Barb.  (N.  Y.)  115 ;  Shute  v.  Dorr,  5  Wend.  (N.  Y.) 
204 ;  Whiting  v.  Earle,  3  Pick.  (Mass.)  201,  15  Am.  Dec.  207 ;  Inhabitants  of 
Dennysville  v.  Inhabitants  of  Trescott,  30  Me.  470 ;  Inhabitants  of  West  Gar- 
diner v.  Inhabitants  of  Manchester,  72  Me.  509;  Penn  v.  Whitehead,  17  Grat. 
(Va.)  503,  94  Am.  Dec.  478 ;  Lewis  v.  Missouri,  K.  &  T.  Ry.  Co.,  82  Kan.  351, 
108  Pac.  95;  Johnson  v.  Silsbee,  49  N.  H.  543;  Beaver  v.  Bare,  104  Pa.  58, 
49  Am.  Rep.  567;  Donegan  v.  Davis,  66  Ala.  362;  Haugh  Ketcham  &  Co. 
Iron  Works  v.  Duncan,  2  Ind.  App.  264,  28  N.  E.  334 ;  Everett  v.  Sherfey,  1 
Iowa,  357;  Schoenberg  v.  Voigt,  36  Mich.  310. 

s  Aldrich  v.  Bennett,  63  N.  H.  415,  56  Am.  Rep.  529 ;  Vanatta  v.  Carr,  229 
111.  47,  82  N.  E.  267;  Dick  v.  Grissom,  Freem.  Ch.  (Miss.)  428;  Town  of 
Northfield  v.  Town  of  Brookfleld,  50  Vt.  62;  Inhabitants  of  Taunton  v.  In- 
habitants of  Plymouth,  15  Mass.  203;  Com.  v.  Graham,  157  Mass.  73,  31  N. 
E.  706,  16  L.  R.  A.  578,  34  Am.  St.  Rep.  255;  STATE  EX  REL.  SCOTT  v. 
LOWELL,  78  Minn.  166,  80  N.  W.  877,  46  L.  R.  A.  440,  79  Am.  St.  Rep.  358, 
Cooley  Cas.  Persons  and  Domestic  Relations,  22;  Town  of  Craftsbury  v. 
Town  of  Greensboro,  66  Vt.  585,  29  Atl.  1024.  The  fact  that  the  marriage  is 
against  the  parent's  will  can  make  no  difference,  if  the  marriage  is  valid. 
Aldrich  v.  Bennett,  supra ;  Com.  v.  Graham,  supra ;  Cochran  v.  Cochran,  196 
N.  Y.  86,  89  N.  E.  470,  24  L.  R.  A.  (N.  S.)  160,  17  Ann.  Cas.  782.  But  see 


§§  128-131)  EMANCIPATION  OF   CHILDREN  361 

ent's  rights  over  him,  and  to  his  services  and  earnings,  cease,  and 
the  child  is  emancipated  by  operation  of  law.9  At  common  law, 
the  age  of  majority  is  21  years  for  both  sexes,  but,  by  statute,  in 
some  jurisdictions  a  female  reaches  her  majority  at  18. 

It  is  said  that  emancipation  will  be  inferred  from  the  wrongful 
conduct  of  a  parent  indicating  a  renunciation  of  the  parental  re- 
lation, as  when  he  abandons  or  forces  his  child  to  leave  him,  or 
neglects  to  support  him,  so  that  it  is  necessary  for  the  child  to  sup- 
port himself.  It  is  better,  however,  to  class  emancipation  thus  ef- 
fected as  emancipation  by  operation  of  law ;  for  willingness  of  the 
parent,  under  such  circumstances,  is  altogether  immaterial.  The 
law  emancipates  the  child.  A  parent  is  only  entitled  to  the  serv- 
ices and  earnings  of  his  child  while  the  child  is  supported  by  him. 
"Although  the  general  principle  is  clear  and  unquestioned  that  the 
father  is  entitled  to  the  services  of  his  minor  child,  and  to  all  that 
such  child  earns  by  his  labor,  yet  it  seems  to  be  equally  clear  that, 
as  the  right  of  the  father  to  the  services  of  the  child  is  founded 
upon  his  duty  to  support  and  maintain  his  child,  if  he  should  fail, 
neglect,  or  refuse  to  observe  and  perform  this  duty,  his  right  to  the 
services  of  his  child  should  cease  to  exist ;  and  such  we  hold  to  be 
the  law."  10  It  has  therefore  been  held  that,  where  a  widow  marries 
again,  she  cannot  recover  the  wages  due  her  daughter  by  her  first 
husband,  who  does  not  live  with  her,  and  is  not  supported  by  her.11 
And  the  rule  is  well  settled  "that  if  the  father  abandons  the  child, 
and  leaves  him  to  provide  for  himself,  the  child  becomes  entitled 
to  his  earnings  as  a  means  of  support,  and  the  father  has  no  claim 
upon  them."  12  "As  the  father  may  forfeit  his  right  to  the  custody 

White  v.  Henry,  24  Me.  531 ;  Austin  v.  Austin,  167  Mich.  164,  132  N.  W.  495, 
Ann.  Gas.  1913A,  545. 

»  Town  of  Poultney  v.  Town  of  Glover,  23  Vt.  328 ;  Brown  v.  Ramsay,  29 
N.  J.  Law,  117;  Mercer  v.  Jackson,  54  111.  397.^ 

10  Farrell  v.  Farrell,  3  Houst.  (Del.)  633.     And  see  Hollingsworth  v.  Swe- 
denborg,  49  Ind.  378,  19  Am.  Rep.  687 ;   Inhabitants  of  Wells  v.  Inhabitants  of 
Kennebunk,  8  Greenl.  (Me.)  200 ;   In  re  Riff  (D.  C.)  205  Fed.  406 ;   P.  J.  Huny- 
cutt  &  Co.  v.  Thompson,  159  N.  C.  29,  74  S.  E.  628,  40  L.  R.  A.  (N.  S.)  488, 
Ann.  Gas.  1913E,  928 ;    Smith  v.  Gilbert,  80  Ark.  525,  98  S.  W.  115,  8  •  L.  R. 
A.  (N.  S.)  1098;  ROUNDS  BROS.  v.  McDANIEL,  133  Ky.  669,  118  S.  W.  956, 
134  Am.  St.  Rep.  482,  19  Ann.  Gas.  326,  Cooley  Gas.  Persons  and  Domestic  Re- 
lations, 193 ;    Chaloux  v.  International  Paper  Co.,  75  N.  Hv  281,  73  Atl.  301, 
139  Am.  St.  Rep.  690. 

11  Hollingsworth  v.  Swedenborg,  49  Ind.  378,  19  Am.  Rep.  687.    And  see  In- 
habitants of  St.  George  v.  Inhabitants  of  Deer  Isle,  3  Greenl.  (Me.)  390. 

12  Atwood  v.  Holcomb,  39  Conn.  270,  12  Am.  Rep.  386.    See,  also,  Smith  v. 
Gilbert,  80  Ark.  525,  98  S.  W.  115,  8  L.  R.  A,  (N.  S.)  1098;    Swift  &  Co.  v. 


362  RIGHTS  OF  PARENTS  AND  OF  CHILDREN  (Ch.  10 

and  control  of  his  child's  person  by  abusing  his  power  so,  by  neg- 
lecting to  fulfill  the  obligations  of  a. father,  he  may  forfeit  his  right  / 
to  the  fruit  of  his  child's  labor.  If  he  provides  no  home  for  his  pro- 
tection, if  he  neither  feeds  nor  clothes  him,  nor  ministers  to  his 
wants  in  sickness  or  health,  it  would  be  a  most  harsh  and  unnatural 
law  which  authorized  the  father  to  appropriate  to  himself  all  the 
child's  earnings.  It  would  be  recognizing  in  fathers  something  like 
that  preeminent  and  sovereign  authority  which  has  never  been  ad- 
mitted by  the  jurisprudence  of  any  civilized  people,  except  that  of 
ancient  Rome,  whose  law  held  children  to  be  the  property  of  the 
father,  and  placed  them,  in  relation  to  him,  in  the  category  of  things 
instead  of  that  of  persons."  13 

Same — Estoppel  of  Parent 

If  a  parent,  by  his  conduct,  leads  others  to  reasonably  believe  that 
he  has  emancipated  his  child,  and  such  others  act  upon  this  belief, 
the  parent  will  be  estopped  to  deny  emancipation  to  their  prejudice, 
though  there  has  been  no  emancipation  either  in  fact  or  in  law.  If, 
for  instance,  a  child  makes  a  contract,  on  his  own  account,  to  serve 
another,  and  the  father  knows  of  it,  and  makes  no  objection,  t"he 
other  party  to  the  contract  may  safely  pay  the  child  his  earnings, 
and  the  payment  will  bar  a  claim  to  such  earnings  by  the  father.14 

Johnson,  138  Fed.  867.  71  C.  C.  A.  619,  1  L.  R.  A.  (N.  S.)  1161;  Wodell  v. 
Coggeshall,  2  Mete.  (Mass.)  89,  35  Am.  Dec.  391;  Chilson  v.  Philips,  1  Vt. 
41;  Cloud  v.  Hamilton,  11  Humph.  (Tenn.)  104,  53  Am.  Dec.  "78;  Gulf  Coop- 
erage Co.  v.  Abernathy,  54  Tex.  Civ.  App.  137,  116  S.  W.  869;  Nightingale  v. 
Withington,  15  Mass.  275,  8  Am.  Dec.  101 ;  Ream  v.  Watkins,  27  Mo.  516,  72 
Am.  Dec.  283;  Canovar  v.  Cooper,  3  Barb.  (N.  Y.)  115;  The  Etna,  1  Ware, 
474,  Fed.  Cas.  No.  4,542;  Stansbury  v.  Bertron,  7  Watts  &  S.  (Pa.)  362;  MC- 
CARTHY v.  RAILROAD  CORP.,  148  Mass.  550,  20  N.  E.  182,  2  L.  R.  A.  608, 
Cooley  Cas.  Persons  and  Domestic  Relations,  200 ;  Liberty  v:  Palermo,  79  Me. 
473,  10  Atl.  455 ;  Brown  v.  Ramsay,  29  N.  J.  Law,  117 ;  Loy  v.  Loy,  128  Ind. 
150,  27  N.  E.  351 ;  Clay  v.  Shirley,  65  N.  H.  644,  23  Atl.  521. 

is  The  Etna,  1  Ware,  474,  Fed.  Cas.  No.  4,542. 

n  Whiting  v.  Earle,  3  Pick.  (Mass.)  201,  15  Am.  Dec.  207;  Vance  v.  Cal- 
houn,  77  Ark.  35,  90  S.  W.  619,  113  Am.  St.  Rep.  Ill ;  Culberson  v.  Alabama 
Const.  Co.,  127  <3a.  599,  56  S.  E.  765,  9  L.  R.  A.  (N.  S.)  411,  9  Ann.  Cas.  507 ; 
Merrill  v.  Hussey,  101  Me.  439,  64  Atl.  819;  McMorrow  v.  Dowell,  116  Mo. 
App.  289,  90  S.  W.  728;  Atkins  v.  Sherblno,  58  Vt.  248,  4,  Atl.  703;  Nixon 
v.  Spencer,  16  Iowa,  214;  Armstrong  v.  McDonald,  10  Barb.  (N.  Y.)  300; 
Smith  v.  Smith,  30  Conn.  Ill;  Schoonover  v.  Sparrow,  38  Minn.  393,  37  N. 
W.  949 ;  In  re  Riff  (D.  C.)  205  Fed.  406 ;  Ingram  v.  Southern  Ry.  Co.,  152  N. 
C.  762,  67  S.  E.  926 ;  Lowrie  v.  Oxpiidine,  153  N.  C.  267,  69  S.  E.  131 ;  Dan- 
iel v.  Atlantic  Coast  Line  R.  Co.,  171  N.  C.  23,  86  S.  E.  174;  Giovagnioli  v. 
Ft  Orange  Const.  Co.,  148  App.  Div.  4S9.  133  N.  Y.  Supp.  92.  See.  also,  Ping 
Min,  &  Mill.  Co.  v.  Grant,  68  Kan.  732,  75  Pac.  1044,  applying  Gen.  St.  Kan. 


§§  128-131)  EMANCIPATION   OP   CHILDREN  363 

There  is  no  necessity  to  ask  whether  there  has  been  an  emancipa- 
tion in  fact.15  It  is  sufficient  to  apply  the  equitable  principle  that 
"where  one  voluntarily,  by  his  words  or  conduct,  causes  another  to 
believe  the  existence  of  a  certain  state  of  things,  and  induces  him 
to  act  on  that  belief,  so  as  to  alter  his  own  previous  position  for 
the  worse,  the  former  is  concluded  from  averring  against  the  latter 
a  different  state  of  things  as  existing  at  the  same  time."  16  Such 
conduct  does  not  necessarily  conclude  the  parent  as  against  the 
child,  'nor  would  it  prevent  him,  in  the  absence  of  an  emancipation 
in  fact,  from  claiming  the  wages  before  payment,  and  thereby  ren- 
dering the  employer  liable  to  him.17  While  the  fact  that  the  child 
received  his  wages  for  his  own  use  does  not  conclusively  show 
emancipation,18  acquiescence  by  the  father  in  the  child's  contract- 
ing on  his  own  account,  and  receiving  and  using  his  wages,  would 
be  evidence  from  which  the  jury  might  infer  emancipation  in  fact.19 

Consideration — Revocation 

The  relinquishment  by  a  parent  of  his  right  to  the  services  and 
earnings  of  his  child  is  valid  as  a  gift,  and,  as  between  the  parties, 
it  requires  no  consideration.  When  a  child  performs  labor  for  his 
parent,  under  an  agreement  that  he  shall  be  compensated  therefor 
by  the  parent,  or  performs  labor  for  another  under  an  agreement 
with  the  parent  that  he  (the  child)  shall  own  what  he  receives, 
the  parent  will  be  bound  by  the  agreement,  though  there  is  no  con- 
sideration for  the  relinquishment  of  his  rights.20  "The  cases  re- 
ferred to  establish  the  doctrine  that  it  (the  right  to  the  child's 
services)  may  be  transferred  to  the  minor.  It  is  to  be  regarded  as 
being  in  the  nature  of  property,  and,  as  a  minor  may  hold  other 
property  independently  of  his  father,  there  seems  to  be  no  valid 

1901,  §  4185;  Langer  v.  Kaufman,  94  Misc.  Rep.  216,  157  N.  Y.  Supp.  825, 
applying  Domestic  Relations  Law  (Consol.  Laws  N.  Y.  c.  14)  §  72.  See  Comp. 
Laws  N.  D.  1913,  §  4437. 

IB  Atkins  v.  Sherbino,  58  Vt  248,  4  Atl.  703. 

is  Fetter,  Eq.  45.  N 

IT  Atkins  v.  Sherbino,  58  Vt.  248,  4  Atl.  703. 

is  Wallace  v.  Cox,  136  Tenn.  69,  188  S.  "W.  611,  L.  R.  A.  1917B.  690. 

isLackman  v.  Wood,  25  Cal.  147;    Scott  v.  White,  71  111.  287. 

20  Fort  v.  Gooding,  9  Barb.  (N.  Y.)  371 ;  Stanley  v.  National  Union  Bank, 
115  N.  Y.  122,  22  N.  E.  29;  Atwood  v.  Holcomb,  39  Conn.  270,  12  Am.  Rep. 
386;  Chase  v.  Smith,  5  Vt.  556;  Abbott  v.  Converse,  4  Allen  (Mass.)  530; 
Shute  v.  Dorr,  5  Wend.  (N.  Y.)  204;  ROUNDS  BROS.  v.  McDANIEL,  133  Ky. 
669,  118  S.  W.  956,  134  Am.  St.  Rep.  482,  19  Ann.  Cas.  326,  Cooley  Gas.  Persons 
and  Domestic  Relations,  193;  Gale  v.  Parrot,  1  N.  H.  28;  Mprse  v.  Welton, 
6  Conn.  547,  16  Am.  Dec.  73 ;  Snediker  v.  Everingham,  27  N.  J.  Law,  143. 


364  RIGHTS  OP  PARENTS  AND  OF  CHILDREN  (Ch.  10 

reason  why  he  may  not  thus  hold  the  right  to  his  own  time  and 
earnings.  *  *  *  As  it  may  be  held  by  gift  or  license,  there 
is  no  reason  why  the  gift,  when  accepted,  should  be  any  more  revo- 
cable, without  the  consent  of  the  donee,  than  other  gifts."  21 

If  the  emancipation  is  without  consideration,  however,  it  may  be 
revoked  at  any  time  before  it  is  acted  upon,  and  from  the  time  of 
revocation  the  parent  is  restored  to  his  original  rights.22  It  is  a 
mere  gift  or  license,  and,  like  any  other  gift  or  license,  it  may  be  re- 
voked at  any  time  before  it  is  accepted,  and  acceptance  is  acting  up- 
on it.  "A  gift  is  not  binding  on  the  donor  until  accepted;  and 
the  acceptance  of  a  gift  of  this  character  must  be  by  acting  upon  it. 
Until  it  is  acted  upon,  it  must,  from  the  nature  of  the  case,  be  revo- 
cable." 2» 

If  the  relinquishment  of  his  rights  by  the  parent  is  supported  by 
a  valuable  consideration,  or  at  common  law  at  least,  if  his  agree- 
ment is  under  seal,  he  cannot  revoke.  "As  he  [the  minor]  may  hold 
it  [his  time  and  right  to  earnings]  by  a  contract  with  his  father 
under  seal,  or  for  a  valuable  consideration,  there  is  no  more  reason 
for  holding  that  the  father  may  revoke  this  contract  at  his  pleasure 
than  any  other  contract.  On  principle,  he  should  be  as  fully  bound 
by  it  as  by  a  conveyance  of  land  or  other  property  to  his  child."  2* 

Rights  of  Parent's  Creditors 

The  emancipation  of  a  child,  and  relinquishment  by  the  parent 
of  his  right  to  the  future  services  and  earnings  of  the  child,  is  per- 
fectly valid  as  against  the  parent's  creditors,  even  though  the  parent 
may  be  insolvent,  and  even  though  the  intention  is  to  prevent  the 
creditors  from  enforcing  their  claims  against  such  earnings,  or  prop- 
erty purchased  with  them.28  And  this  is  true  though  the  child  re- 

21  Abbott  v.  Con  verse,  4  Allen  (Mass.)  530. 

22  Abbott   v.    Converse,   4    Allen    (Mass.)    530;    Dickinson  v.  Talraage,  138 
Mass.  249:  Everett  v.  Sherfey,  1  Iowa.  356;  Soldanels  v.  Missouri  Pac.  Rail- 
way Co.,  23  Mo.  App.  516;    Clark  v.  Fitch,  2  Wend  (N.  Y.)  459,  20  Am.  Dec. 
639;    Chase  v.  Elkins,  2  Vt.  290;    Stovall  v.  Johnson,  17  Ala.  19;    Hood  & 
Johnson  v.  Pelham,  Sitz  &  Co.,  5  Ala.  App.  471,  59  South.  767;    In  re  Riff 
(D.  C.)  205  Fed.  406;  BIGGS  v.  ST.  LOUIS,  I.  M.  &  S.  RY.  CO.,  91  Ark.  122, 
120  S.  W.  970,  Cooley  Gas.  Persons  and  Domestic  Relations,  190;    but  see 
ROUND  BROS.  v.  McDANIEL,  133  Ky.  669,  118  S.  W.  956,  134  Am.  St.  Rep. 
482,  19  Ann.  Cas.  326,  Cooley  Cas.  Persons  and  Domestic  Relations,  193,  where 
it  was  held  that  the  father  lost  his  right  to  revoke  by  delay. 

as  Abbott  v.  Converse,  4  Allen  (Mass.)  530. 
**  Abbott  v.  Converse,  4  Allen  (Mass.)  530. 

as  Wilson  v.  McMillan,  62  Ga.  16,  35  Am.  Rep.  115;  Atwood  v.  Holcomb,  39 
Conn.  270,  12  Am.  Rep.  386;  Manchester  v.  Smith,  12  Pick.  (Mass.)  113; 


§§  132-134)      ACTION   BY   PARENT   FOR   INJURIES   TO  CHILD  365 

mains  at  home,  and  is  hired  by  the  parent.28  As  was  said  by  the 
North  Carolina  court:  "A  creditor  cannot  make  his  debtor  work 
in  order  to  pay  the  debt,  nor  can  he  force  him  to  make  his  children 
work,  or  sell  under  execution  the  valuable  interest  which  a  father 
has  in  the  services  of  the  child."  2T  And,  as  was  said  by  the  Penn- 
sylvania court,  a  father  "is  not  bound  to  work  his  son  or  daughter 
as  he  would  work  a  horse  or  slave  for  the  benefit  of  his  creditors."  28 
If,  however,  such  an  arrangement  is  merely  colorable,  and  the  par- 
ent is  in  fact  still  to  have  the  benefit  of  the  wages,  the  transaction 
is  fraudulent  and  void  as  against  creditors.29  And,  where  the 
wages  are  already  earned,  the  gift  of  them  would  be  subject  to  the 
general  rules  governing  voluntary  conveyances.80 


ACTION  BY  PARENT  FOR  INJURIES  TO  CHILD 

132.  When  a  child  is  injured  by  the  wrongful  act  or  omission  of  a 

person,  the  father,  or  any  other  person  standing  in  loco  pa- 
rentis,  may  maintain  an  action  against  the  wrongdoer  to 
recover  for  the  resulting  loss  of  service  and  incidental  ex- 
penditures. 

133.  The  rules  as  to  the  necessity  of  showing  the  relationship  of 

master  and  servant  between  the  parent  and  child  to  entitle 

the  parent  to  sue  may  be  thus  stated : 

(a)  To  recover  for  loss  of  service,  the  right  to  the  child's  serv- 
ices, and  therefore  the  relationship  of  master  and  serv- 
ant, actual  or  constructive,  must  be  shown..  The  re- 
lationship exists  constructively  if  there  is  a  right  to 
service.  Therefore — 

Wambold  v.  Vick,  50  Wis.  456,  7  N.  W.  438;  Lord  v.  Poor,  23  Me.  569 ;  Trap- 
nell  v.  Conklyn,  37  W.  Va.  242,  16  S.  B.  570,  38  Am.  St  Rep.  30 ;  McCloskey 
v.  Cyphert,  27  Pa.  220;  Partridge  v.  Arnold,  73  111.  600;  Winchester  v.  Reid, 
53  N.  C.  379;  Johnson  v.  Silsbee,  49  N.  H.  543;  Chase  v.  Elkins,  2  Vt.  290; 
Bray  v.  Wheeler,  29  Vt  514;  Lackman  v.  Wood,  25  Cal.  147;  Dierker  v. 
Hess,  54  Mo.  250 ;  Furrh  v.  McKnight,  6  Tex.  Civ.  App.  583,  26  S.  W.  95. 

2e  Wilson  v.  McMillan,  62  Ga.  16,  35  Am.  Rep.  115;  Dierker  v.  Hess,  54  Mo. 
250;  Hall  v.  Hall,  44  N.  H.  293. 

2  T  Winchester  v.  Reid,  53  N.  C.  379. 

28  McCloskey  v.  Cyphert,  27  Pa.  220. 

2»  Atwood  v.  Holcomb,  39  Conn.  270,  12  Am.  Rep.  386;  Wilson  v.  McMillan, 
62  Ga.  16,  35  Am.  Rep.  115. 

so  Beaver  v.  Bare,  104  Pa.  58,  49  Am.  Rep.  567;  Winchester  v.  Reid,  53 
N.  C.  379;  Dick  v.  Grissom,  Freem.  Ch.  (Miss.)  428. 


366  EIGHTS  OP  PARENTS  AND  OF  CHILDREN  (Ch.  10 

(1)  If  the  child  is  a  minor,  living  at  home,  service  is  pre- 

sumed. 

(2)  Temporary  absence  of  the  child  from  home  will  not  pre- 

vent a  recovery,  if  the  parent  has  a  right  to  its  serv- 
ices. 

(3)  By  the  weight  of  authority  in  this  country,  but  not  in 

England,  the  parent  may  recover  if  he  has  not  relin- 
quished his  right  to  reclaim  the  child's  services  at  any 
time,  though  the  child,  at  the  time  of  the  injury,  may 
be  in  the  actual  service  of  another,  even  with  the  par- 
ent's consent,  and  even  though  the  child  does  not  in- 
tend to  return. 

(4)  If  the  parent  has  relinquished  his  right  to  the  child's 

services,  'he  cannot  recover  on  the  theory  of  loss  of 

service. 

(b)  On  the  theory  that  loss  of  service  at  the  time  of  action  is  the 
gist  of  the  action  by  a  parent  for  an  injury  to  his  child,  it 
is  held  in  England  that  there  can  be  no  recovery  at  all 
where  there  has  been  no  loss  of  service,  as  where  the  child 
is  too  young  to  render  any  service.  But,  by  the  weight  of 
authority  in  this  country,  there,  may  be  a  recovery  for  in- 
cidental expenses  in  caring  for  the  child,  and  there  may  be 
a  recovery  for  prospective  loss  of  services,  however  young 
the  child  may  be. 

134.  At  common  law,  an  action  would  not  lie  for  an  injury  result- 
ing in  the  immediate  death  of  the  child ;  but  a  right  of  ac- 
tion in  such  a  cause  is  very  generally  given  by  statute. 

Where  a  child  is  injured  by  the  wrongful  conduct  of  another,  and 
the  injury  results  in  direct  and  proximate  damage  to  the  parent,  the 
tort  gives  rise  to  two  causes  of  action — one  in  the  parent,  and  one  in 
the  child.31  The  two  causes  of  action  are  separate  and  distinct. 
The  child  cannot  sue  for  the  damage  to  the  parent,  nor  can  the  par- 
ent sue  for  the  damage  to  the  child.  Each  must  sue  for  his  own 
damage,  and  neither  action  is  a  bar  to  the  other.32 

»i  Louisville,  H.  &  St.  L.  R.  Co.  v.  Lyons.  156  Ky.  222,  160  S.  W.  942. 

32  Wilton  v.  Middlesex  Railroad  Co.,  125  Mass.  130;  Karr  v.  Parks,  44 
Cal.  46;  Forsythe  v.  Central  Mfg.  Co..  103  Tenn.  497,  53  S.  W.  731 ;  Slaugh- 
ter v.  Nashville,  C.  &  St.  L.  Ry.  Co.,  90  S.  W.  243,  28  Ky.  Law  Rep.  665,  re- 
hearing denied  91  S.  W.  713.  » 


§§  132-134)      ACTION    BY   PARENT   FOR   INJURIES   TO   CHILD  367 

Where  the  wrong  results  in  damage  to  the  child  only,  no  action 
can  be  maintained  by  the  parent.  A  father  cannot  maintain  an  ac- 
tion for  the  wrongful  exclusion  of  his  child  from  school,  for  the 
child  alone  is  damaged.33  Where  a  child  is  injured  by  an  assault 
and  battery,  the  child  alone  can  sue  for  the  personal  injury,  includ- 
ing the  physical  and  mental  suffering,  and  the  expense,  if  any,  in- 
curred by  him ;  for  this  damage  is  to  him,  and  not  to  the  parent.34 
As  will  be  seen  in  a  subsequent  section,  the  same  is  true  where  a, 
daughter  is  seduced  or  debauched.  Her  father  cannot  maintain  an 
action  therefor  at  common  law,  unless  he  is  specially  damaged. 
For  the  mere  seduction,  the  action,  if  it  can  be  maintained  at  all, 
must  be  brought  by  the  daughter.35  And  so  it  is  in  other  cases;  a 
parent  cannot  in  any  case  maintain  an  action  for  an  injury  to  his 
child  alone,  unless  he  brings  the  action  in  the  name  of  the  child.36 
If,  however,  a  wrong  results  in  a  direct  injury  to  the  parent,  as 
distinguished  from  the  injury  to  the  child,  the  parent  has  a  right  of 
action. 

Loss  of  Services  of  Child 

Since  a  parent  having  the  care  and  custody  of  his  child  has  a  right 
to  his  services  and  earnings,  any  wrongful  act  or  omission  of  a  per- 
son, the  direct  result  of  which  is  to  cause  him  to  lose  such  services 
temporarily  or  permanently,  is  an  injury  to  him,  as  distinguished 
from  the  injury  to  the  child;  and.  the  authorities  are  therefore 
agreed  that,  if  he  has  sustained  such  a  loss,  he  may  maintain  an 
action  therefor.  And  in  such  an  action  he  may  recover,  not  only  for 
the  loss  up  to  the  time  the  action  is  brought,  but  also,  since  he  can 
recover  but  once  for  the  wrong,  for  any  loss  of  service  during  the 

as  Boyd  v.  Blaisdell,  15  Ind.  73 ;  Sorrels  v.  Matthews,  129  Ga.  319,  58  S.  E. 
819,  13  L.  R.  A.  (N.  S.)  357,  12  Ann.  Gas.  404;  Donahoe  v.  Richards,  38  Me. 
376. 

s*  Cowden  v.  Wright,  24  Wend.  (N.  Y.)  429,  35  Am.  Dec.  633 ;  Rogers  v. 
Smith,  17  Ind.  323,  79  Am.  Dec.  483 ;  Wilton  v.  Middlesex  Railroad  Co.,  125 
Mass.  130 ;  Western  Union  Tel.  Co.  v.  Erwin  (Tex.  Civ.  App.)  147  S.  W.  607. 

ss  Post,  p.  :378. 

<«  SORRELS  v.  MATTHEWS,  129  Ga.  319,  58  S.  E.  819,  13  L.  R.  A.  (N.  S.) 
357,  12  Ann.  Cas.  404,  Cooley  Cas.  Persons  and  Domestic  Relations,  200 ;  Kirk 
v.  Middlebrook,  201  Mo.  245,  100  S.  W.  450 ;  Pattison  v.  Gulf  Bag  Co.,  116  La. 
963,  41  South.  224,  114  Am.  St.  Rep.  570;  Tennessee  Cent  Ry.  Co.  v.  Doak, 
115  Tenn.  720,  92  S.  W.  853.  But  see  Nyman  v.  Lynde,  93  Minn.  257,  101  N. 
W.  163,  following  Gardner  v.  Kellogg,  23  Minn.  463,  and  holding  that  under 
Rev.  Laws  1905,  §  4060,  the  father  may  maintain  an  action  for  injuries  to  his 
minor  child ;  the  action  being  for  the  benefit  of,  and  a  bar  to  an  independent 
action  by,  the  child. 


368  RIGHTS  OF  PARENTS  AND  OF  CHILDREN  (Ch.  10 

child's  minority  which,  in  the  judgment  of  the  jury,  and  according 
to  the  evidence,  will  be  sustained  in  the  future.87  This  is  true  of 
any  injury  to  a  child  resulting  directly  in  loss  of  services  to  the  par- 
ent. It  is  true  of  an  assault  and  battery,38  of  negligence  resulting 
in  personal  injuries,89  of  malicious  prosecution  or  false  imprison- 
ment,40 and  of  injuries  inflicted  by  vicious  animals  negligently  per- 
mitted to  run  at  large.41  As  will  be  seen  more  at  length  in  subse- 
quent sections,  it  is  also  true  of  the  seduction  or  debauching  of  a 
daughter,42  and  of  the  abduction,  enticing  away,  or  harboring  of 
a  child.48 

The  right  of  the  parent  to  recover  for  the  loss  of  services  of  the 
child  depends,  in  the  case  of  personal  injuries,  on  the  right  of  the 
child  to  recover  for  the  injury.44  So,  too,  where  the  parent  by  giv- 
ing consent  to  employment  in  a  dangerous  occupation  thereby  as- 
sumed the  risks  of  the  employment,  he  cannot  recover  for  an  injury 
due  thereto.48  But  the  consent  of  the  parent  to  the  employment 


a*  Russell  v.  Come,  2  Ld.  Raym.  1032 ;  Wilton  v.  Middlesex  R.  Co.,  125 
Mass.  130;  Cowden  v.  Wright,  24  Wend.  (X.  Y.)  429,  35  Am.  Dec.  633;  Dol- 
lard  v.  Roberts,  130  N.  Y.  269,  29  N.  E.  104,  14  L.  R.  A.  238 ;  Rogers  v.  Smith, 
17  Ind.  323,  79  Am.  Dec.  483 ;  Dufield  v.  Cross,  12  111.  397 ;  Kerr  v.  Forgue, 
54  111.  482,  5  Am.  Rep.  146 ;  Shawnee  Gas  &  Electric  Co.  v.  Motesenbocker,  41 
Old.  454,  138  Pac.  790;  Kenner  v.  Kenner,  139  Tenn.  700,  202  S.  W.  723,  L.  R. 
A.  1918E,  587,  denying  rehearing  139  Tenn.  211,  201  S.  W.  779,  L.  R.  A.  1918E, 
587 ;  Magee  v.  Holland,  27  N.  J.  Law,  86,  72  Am.  Dec.  341 ;  Shields  v.  Yonge, 
15  Ga.  349,  60  Am.  Dec.  698;  Kennard  v.  Burton,  25  Me.  39,  43  Am.  Dec. 
249 ;  Klingman  v.  Holmes,  54  Mo.  304 ;  Houston  &  G.  N.  R.  Co.  v.  Miller,  49 
Tex.  322;  Braswell  v.  Garfield  Cotton  Oil  Mill  Co.,  7  Ga.  App.  167,  66  S.  E. 
639;  Chesapeake  &  O.  Ry.  Co.  v.  De  Atley,  151  Ky.  109,  151  S.  W.  363; 
Shawnee  Gas  &  Electric  Co.  v.  Hunt,  32  Okl.  368,  122  Pac.  673;  Wennell  v. 
Dowson,  88  Conn.  710,  92  Atl.  663. 

ss  Cpwden  v.  Wright,  24  Wend.  (N.  Y.)  429,  35  Am.  Dec.  633;  Klingman  v. 
Holmes,  54  Mo.  304 ;  Hoover  v.  Helm,  7  Watts  (Pa.)  62;  Trimble  v.  Spiller, 
7  T.  B.  Mon.  (Ky.)  394,  18  Am.  Dec.  189. 

3»  Kennard  v.  Burton,  25  Me.  39,  43  Am.  Dec.  249 ;  Shields  v.  Yonge,  15  Ga. 
349,  60  Am.  Dec.  698 ;  Wilton  v.  Middlesex  R.  Co.,  125  Mass.  130 ;  Houston  & 
G.  N.  R.  Co.  v.  Miller,  49  Tex.  322. 

40  Rogers  v.  Smith,  17  Ind.  323,  79  Am.  Dec.  483. 

4iDurden  v.  Barnett,  7  Ala.  169;    Karr  v.  Parks,  44  Cal.  46. 

42  Post,  p.  378. 

43  Post,  p.  384. 

44  Thompson  v.  United  Laboratories  Co.,  221  Mass.  276,  108  N.  B.  1042 ;  Re- 
gan v.  Superb  Theatre,  220  Mass.  259,  107  N.  E.  984.     If  the  child's  right  of 
action  is  barred  by  reason  of  contributory  negligence,  the  parent's  right  of 
action  is  also  barred.     Raden  v.  Georgia  R.  Co.,  78  Ga.  47. 

45  Weaver  v.  Iselin,  161  Pa.  386,  29  Atl.  49:   King  v.  Floding,  18  Ga.  App. 
280,  89  S.  E.  451;   Hetzel  v.  Wasson  Piston  Ring  Co.,  89  N.  J.  Law,  205,  98 


§§  132-134)      ACTION   BY  PARENT   FOR  INJURIES   TO  CHILD  309 

will  not  prevent  a  recovery  for  injuries  due,  not  to  the  ordinary 
risks,  but  the  negligence  of  the  employer.46 

Expenses  Incurred  by  Reason  of  the  Wrong 

If  a  parent  is  put  to  extra  expense  in  the  support  and  maintenance 
of  his  children,  by  reason  of  the  tortious  conduct  of  another,  consti- 
tuting an  interference  with  his  legal  rights  as  parent,  he  should  be 
allowed  to  recover  for  such  expense  from  the  wrongdoer.  Thus,  in 
case  of  an  assault  and  battery  committed  upon  his  child,  or  any  oth- 
er tortious  conduct  towards  the  child,  resulting  in  personal  injuries, 
the  parent  should  recover  for  the  medical  or  other  expenses  incurred 
in  curing  and  caring  for  him.  His  right  to  recover  such  damages  is 
conceded  by  all  the  authorities  where  the  relation  of  master  and 
servant  exists,  actually  or  constructively,  and  the  injury  also  re- 
sults in  a  loss  of  the  child's  services.47  This  rule  not  only  applies  to 
expenses  in  curing  personal  injuries,  but,  as  will  be  seen,  it  also  ap- 
plies to  medical  and  other  expenses  in  caring  for  a  daughter  who 
has  been  seduced  or  debauched,48  and  to  expenses  in  regaining  the 
custody  of  an  abducted  child.40 

Whether  or  not  a  parent  can  recover  for  expenses  in  caring  for 
and  curing  an  injured  child,  independently  of  any  loss  of  services,  is 
a  question  upon  which  the  authorities  are  conflicting.60 

Necessity  to  Show  Loss  of  Service 

It  is  clear,  of  course,  that  there  can  be  no  recovery  as  for  loss  of 
services,  unless  a  loss  of  service  can  be  shown.  Therefore,  where 
the  damages  sought  to  be  recovered  in  any  particular  case  are  for 
the  loss  of  services  of  the  child,  it  must  appear  that  the  relationship 


Atl.  308  (applying  P.  L.  1904,  p.  152).    See,  also,  New  v.  Southern  Ry.  Co., 
116  Ga.  147,  42  S.  E.  391,  59  L.  R.  A.  115. 

46  Woodward  Iron  Co.  v.  Cook,  124  Ala.  349,  27  South.  455. 

* i  Russell  v.  Come,  2  Ld.  Raym.  1032;  Wilton  v.  Middlesex  R.  Co.,  125 
jMass.  130;  Rogers  v.  Smith,  17  Ind.  323,  79  Am.  Dec.  483;  Magee  v.  Hol~ 
land,  27  N.  J.  Law,  86,  72  Am.  Dec.  341;  Shawnee  Gas  &  Electric  Co.  v. 
Motesenbocker,  41  Okl.  454,  138  Pac.  790;  Travers  v.  Hartmann,  5  Boyce 
(Del.)  302,  92  Atl.  855;  Chesapeake  &  O.  R.  Co.  v.  De  Atley,  151  Ky.  109,  151 
S.  W.  363 ;  Klingman  v.  Holmes,  54  Mo.  304 ;  Cuming  v.  Brooklyn  City  R.  Co., 
109  N.  Y.  95, 16  N.  E.  65.  See,  also,  Tennessee  Cent.  Ry.  Co.  v.  Doak,  115  Tenn. 
720,  92  S.  W.  853.  But  see  Fagan  v.  Interurban  St.  Ry.  Co.  (Sup.)  85  N.  Y. 
Supp.  340,  holding  that,  in  an  action  for  personal  injuries  to  plaintiff's  son, 
there  could  be  no  recovery  for  expenses  alleged  to  have  been  incurred  for  the 
board,  lodging,  and  nursing  of  the  son,  where  such  expenses  were  not  paid 
by  plaintiff,  nor  their  reasonable  value  shown. 

48  Post,  p.  378.  49  post,  p.  384.  «»  Post,  p.  372. 

TIFF.P.&  D.REL.(3o  ED.)— 24 


370  BIGHTS  OF  PARENTS  AND  OF  CHILDREN  (Ch.  10 

of  master  and  servant,  actual  or  constructive,  exists  between  the 
plaintiff  and  the  child.51  If  the  child  has  been  wholly  emancipated 
by  the  parent,  so  that  he  is  not  entitled  to  his  services,  there  can 
be  no  recovery  on  the  theory  of  a  loss  of  service.52  Nor,  it  seems 
clear,  can  there  be  any  recovery  on  such  a  theory  by  a  parent  who, 
by  desertion  and  nonsupport,  has  forfeited  all  right  to  his  child's 
services,  or  impliedly  emancipated  him.33 

If  a  minor  child  has  not  been  emancipated,  and  the  parent,  by  his 
conduct,  has  not  lost  the  right  to  his  services,  the  relationship  of 
master  and  servant  will  be  presumed,  and  no  proof  of  acts  of  service 
is  necessary.  It  is  the  right  to  the  child's  service,  and  not  actual 
performance  of  services,  that  determines  the  right  to  recover.54 
The  mere  temporary  absence  of  a  child  from  home,  therefore,  at  the 
time  of  his  injury,  will  not  defeat  a  recovery  by  the  parent,  if  the 
parent  has  a  right  to  his  services.55 

si  Martin  v.  Payne,  9  Johns.  (N.  Y.)  387,  6  Am.  Dec.  288.  And  see  Eickhoff 
v.  Sedalia,  W.  &  S.  W.  Ry.  Co.,  106  Mo.  App.  541,  80  S.  W.  966,  upholding  the 
right  of  a  stepfather  to  sue.  See,  also,  Palmer  v.  Baum,  123  111.  App.  584, 
where  it  was  held  that  a  father  may  recover  for  loss  of  services  of  an  adult 
daughter  who  though  married  was  separated  from  her  husband  and  a  mem- 
ber of  such  father's  family. 

"  MCCARTHY  v.  BOSTON  &  L.  R.  CORP.,  148  Mass.  550,  20  N.  E.  132,  2 

L.  R.  A.  608,  Cooley  Cas.  Persons  and  Domestic  Relations,  200 ;  Chesapeake  & 
O.  Ry.  Co.  v.  De  Atley,  151  Ky.  109,  151  S.  W.  363 ;  Memphis  Steel  Const.  Co. 
v.  Lister,  138  Tenn.  307,  197  S.  W.  902,  L.  R.  A.  1918B,  406 ;  Pecos  &  N.  T. 
Ry.  Co.  v.  Blasengame,  42  Tex.  Civ.  App.  66,  93  S.  W.  187.  Emancipation 
of  a  minor  child  is  a  question  of  fact.  If  the  parent  continues  to  exercise 
authority,  and  the  child  to  submit  to  it,  the  relation  of  master  and  servant 
continues.  Sutton  v.  Huffman,  32  N.  J.  Law,  58 ;  Hudkins  v.  Haskins,  22  W. 
Va.  645. 

ss  Southern  Ry.  Co.  v.  Flemister,  120  Ga.  524,  48  S.  E.  160;  Wodell  v. 
Coggeshall,  2  Mete.  (Mass.)  89,  35  Am.  Dec.  391.  As  to  what  constitutes 
emancipation,  express  and  implied,  see  ante,  p.  280. 

5*  Jag.  Torts,  452;  Evans  v.  "Walton,  L.  R.  2  O.  P.  615;  Maunder  v.  Venn, 
Moody  &  M.  323 ;  Manvell  v.  Thomson,  2  Car.  &  P.  303 ;  Terry  v.  Hutchin- 
son,  L.  R.  3  Q.  B.  599;  Herring  v.  Jester,  2  Houst.  (Del.)  66;  Parker  v. 
Meek,  3  Sneed  (Tenn.)  29;  Emery  v.  Gowen,  4  Greenl.  (Me.)  33,  16  Am.  Dec. 
233 ;  Mercer  v.  Walmsley,  5  Har.  &  J.  (Md.)  27,  9  Am.  Dec.  486 ;  Kennedy  v. 
Shea,  110  Mass.  147,  14  Am.  Rep.  584 ;  Martin  v.  Payne,  9  Johns.  (N.  Y.)  387, 
6  Am.  Dec.  288 ;  Bartley  v.  Richtmyer,  4  N.  Y.  39,  53  Am.  Dec.  338 ;  Boyd  v. 
Byrd,  8  Blackf.  (Ind.)  113,  44  Am.  Dec.  740 ;  MulvehaU  v.  Millward,  11  N.  Y. 
343;  Chesapeake  &  O.  Ry.  Co.  v.  De  Atley,  151  Ky.  109,  151  S.  W.  363;  Rice 
v.  Norfolk  Southern  R.  Co.,  167  N.  C.  1,  82  S.  E.  1034.  And  see  Amos  v. 
Atlanta  Ry.  Co.,  104  Ga.  809,  31  S.  E.  42,  where  the  child  at  the  time  of  the 
injury  was  working  in  the  county  chain  gang  under  sentence. 

35  Martin  v.  Payne,  9  Johns.  (N.  Y.)  387,  6  Am.  Dec.  288;  Boyd  v.  Byrd,  8 
Blackf.  (Ind.)  113,  44  Am.  Dec.  740. 


§§  132-134)      ACTION   BY  PARENT   FOR  INJURIES   TO   CHILD  371 

In  England  it  is  held  that  there  is  no  right  of  action  in  the  par- 
ent, on  the  theory  of  loss  of  service,  where  the  child  has  left  home 
and  is  in  the  service  of  another,  at  the  time  of  the  injury ;  and  that 
it  can  make  no  difference  that  the  parent  has  not  bound  the  child 
out,  and  can  reclaim  his  services  at  any  time,  or  even  that  the 
child's  departure  is  against  the  parent's  will.56  In  this  country  the 
rule  is  different  in  most  states,  if  not  in  all.  It  is  held  that,  if  the 
parent  has  not  emancipated  the  child  or  otherwise  forfeited  the 
right  to  his  services,  he  may  at  any  time  compel  the  child  to  return 
and  serve  him ;  and  the  child,  therefore,  is  still  constructively  in 
the  parent's  service.87  The  American  doctrine  necessarily  results 
from  the  principle  that  it  is  the  right  to  a  minor  child's  services, 
and  not  present  acts  of  service,  at  the  time  of  the  injury,  that  de- 
termines the  right  to  recover.68  The  fact  that  the  child  has  no 
intention  to  return  cannot  make  any  difference,  for  that  cannot  ter- 
minate the  relationship  of  master  and  servant  between  the  parent 
and  the  child.  As  was  said  by  the  New  York  court,  the  child's  voli- 
tion cannot  affect  the  parent's  rights.59  This  question  has  general- 
ly arisen  in  actions  for  the  seduction  or  debauching  of  a  daughter ; 
but  the  doctrine  is  general,  and  must  apply  just  as  well  where 
some  other  injury  to  a  child  is  complained  of.  If  the  child,  at  the 
time  of  the  injury,  is  bound  out  to  service  to  another,  the  rule  is 
different,  for  the  parent  then  has  no  right  to  the  child's  services.60 

s «  Dean  v.  Peel,  5  East,  45;  Davies  v.  Williams,  10  Q.  B.  725;  Hedges  v. 
Tagg,  L.  R.  7  Exch.  283;  Blaymire  v.  Haley,  6  Mees.  &  W.  55;  Thompson 
v.  Boss,  5  Hurl.  &  N.  16. 

57  Martin  v.  Payne,  9  Johns.  (N.  T.)  387,  6  Am.  Dec.  288;  Mulvehall  v, 
Millward,  11  N.  Y.  343;  Clark  v.  Fitch,  2  Wend.  (N.  Y.)  459,  20  Am.  Dec. 
639;  Kennedy  v.  Shea,  110  Mass.  147,  14  Am.  Rep.  584;  Emery  v.  Gowen, 
4  Greenl.  (Me.)  33,  16  Am.  Dec.  233;  Ellington  v.  Ellington,  47  Miss.  329; 
White  v.  Murtland,  71  111.  250,  22  Am.  Rep.  100;  Hornketh  v.  Barr,  8  Serg. 
&  R.  (Pa.)  36,  11  Am.  Dec.  568;  Logan  v.  Murray,  6  Serg.  &  R.  (Pa.)  175,  9 
Am.  Dec.  422;  Mohry  v.  Hoffman,  86  Pa.  358;  Boyd  v.  Byrd,  8  Blackf.  (Ind.) 
113,  44  Am.  Dec.  740;  Bolton  v.  Miller,  6  Ind.  266;  Mercer  v.  Walmsley,  5 
Har.  &  J.  (Md.)  27,  9  Am.  Dec.  486;  Greenwood  v.  Greenwood,  28  Md.  369, 
382 ;  Hudkins  v.  Haskiris,  22  W.  Va.  645. 

5 s  Martin  v.  Payne,  9  Johns.  (N.  Y.)  387,  6  Am.  Dec.  288;  Clark  v.  Fitch, 
2  Wend.  (N.  Y.)  459,  20  Am.  Dec.  639;  Mulvehall  v.  Millward,  11  N.  Y.  343. 

59  Martin  v.  Payne,  9  Johns.  (N.  Y.)   389,  6  Am.  Dec.  288. 

eoDain  v.  Wycoff,  7  N.  Y.  191;  Kennedy  v.  Shea,  110  Mass.  150,  14  Am. 
Hep.  584 ;  Ellington  v.  Ellington,  47  Miss.  329 :  Bolton  v.  Miller,  6  Ind.  262. 
Even  in  England  however,  it  was  held  that  where  a  man  fraudulently  pro- 
cured a  girl  to  enter  his  service,  for  the  purpose  of  seducing  her,  and  car- 
ried out  his  purpose,  the  parent  might  sue  as  if  no  hiring  had  taken  place. 
Speight  v.  Oliviera,  2  Starkie,  493. 


372  RIGHTS  OF  PARENTS  AND  OF  CHILDREN  (Ch.  10 

If  the  service  has  terminated,  however,  and  the  child  has  returned 
home,  or  is  on  his  way  home,  he  is  constructively  in  his  parent's 
service,  and,  if  injured  before  or  after  reaching  home,  the  parent 
may  recover.61 

If  the  child  is  so  young  at  the  time  of  the  injury  that  it  is  incapa- 
ble of  performing  any  act  of  service,  and  it  is  cured  before  it  reach- 
es an  age  at  which  it  can  perform  services,  it  is  clear  that  there 
can  be  no  recovery  as  for  mere  loss  of  service,  for  there  has  been 
and  can  be  no  loss  of  service,  as  the  result  of  the  injury.  In  Hall 
v. -Hollander  62  the  child  was  less  than  three  years  old  when  in- 
jured, and  was  cured  within  six  months.  The  declaration  sought 
to  recover,  among  other  damages,  for  loss  of  the  child's  services 
during  that  time.  It  was  very  properly  held  that  there  could  be  no 
recovery  as  for  loss  of  services.  In  England  the  cases  go  further 
than  this,  and  hold  that,  where  the  parent  sues  "per  quod  servitium 
amisit,"  he  must  show  a  loss  of  service  at  the  time  of  the  action,  and 
cannot  maintain  an  action  solely  for  prospective  loss  of  service. 
And  it  is  therefore  held  that  there  can  be  no  recovery  for  loss  of 
services  where  the  child,  at  the  time  of  the  action,  is  too  young  to 
perform  any  act  of  service,  though  the  injury  may  be  permanent, 
and  it  may  be  clear  that  there  will  be  a  loss  of  services  in  the  future. 
There  are  decisions  and  dicta  in  this  country  to  the  same  effect.83 
But,  in  most  states  where  the  question  has  arisen,  the  doctrine  of 
the  English  courts  is  repudiated,  and  it  is  held  that  there  may  be  a 
recovery  for  prospective  loss  of  services,  however  young  or  in- 
capable of  service  the  child  may  be  at  the  time  the  action  is 
brought.84 

Whether  or  not  a  parent  can  recover  for  expenses  incurred  in  car-  * 
ing  for  his  child  independently  of  any  loss  of  service  is  a  question 


81  Terry  v.  Hutchinson,  L.  R.  3  Q.  B.  599  (a  case  of  seduction  of  a  daugh- 
ter).   And  see  Emery  v.  Gowen,  4  Greenl.  (Me.)  33,  16  Am.  Doc.  233. 

82  7  Dowl.  &  R.  133. 

as  See  Whitaker  v.  Warren,  60  N.  H.  20,  49  Am.  Rep.  302;  Shields  v.  Touge. 
15  Ga.  349,  356,  60  Am.  Dec.  698 ;  Matthews  v.  Missouri  Pac.  Ry.  Co.,  26  Mo. 
App.  75;  Dunn  v.  Cass  Ave.  &  F.  G.  Ry.  Co.,  21  Mo.  App.  188. 

8*Finley  v.  Richmond  &  D.  R.  Co.  (C.  C.)  59  Fed.  419;  Clark  v.  Bayer,  32 
Ohio  St.  299,  30  Am.  Rep.  593;  Frick  v.  St.  Louis,  K.  C.  &  N.  Ry.  Co.,  75 
Mo.  542;  Cuming  v.  Brooklyn  City  R.  Co.,  109  N.  Y.  95,  16  N.  E.  65;  Rice 
v.  Norfolk  Southern  R.  Co.,  167  N.  C.  1,  82  S.  E.  1034;  NETHERLAXD- 
AMERICAN  STEAM  NAV.  CO.  v.  HOLLANDER,  59  Fed.  417,  8  C.  C.  A.  169, 
Cooley  Cas.  Persons  and  Domestic  Relations,  198. 


•§§  132-134)      ACTION   BY  PARENT   FOE   INJURIES   TO   CHILD  373 

upon  which  the  authorities  are  conflicting.  In  Hall  v.  Hollander,65 
which  has  already  been  referred  to,  a  father  brought  an  action  for 
personal  injury  to  his  son  by  driving  against  him.  The  declaration 
alleged  that,  by  means  thereof,  the  son  was  sick  during  the  space  of 
six  months,  "during  all  which  time  the  plaintiff  lost  and  was  depriv- 
ed of  the  service  of  his  said  son  and 'servant,  and  was  also  thereby 
forced  and  obliged  to  pay,  lay_  out,  and  expend  a  large  sum  of 
money,  in  and  about  endeavoring  to  procure  his  said  son  and  serv- 
ant to  be  cured,"  etc.  At  the  trial  it  appeared  that  the  son  was  only 
2^/2  years  old,  and  there  was  no  evidence  that  he  was  capable  of 
performing  any  service  for  his  father.  It  was  therefore  held  that 
the  action  as  brought  could  not  be  maintained.  This  case  has  often 
been  cited  as  authority  for  the  proposition  that  there  can  be  no  re- 
covery for  expenses  incurred  by  a  parent  in  caring  for  the  injured 
child  in  the  absence  of  the  actual  or  constructive  relation  of  master 
and  servant,  and  loss  of  services.  But  the  case  does  not  go  so  far. 
The  declaration  expressly  based  the  right  to  recover  on  the  exist- 
ence of  the  relationship  of  master  and  servant,  and  the  evidence 
showed  that  the  child  was  too  young  to  perform  any  act  of  service. 
It  was  for  this  reason  that  the  action  failed.  Bayley,  J.,  said  that 
he  certainly  was  not  prepared  to  say  "that  a  declaration  might  not 
be  framed,  in  which  the  father  being  averred  to  be  under  an  ob- 
ligation to  maintain  the  child,  and  having  no  means  of  obtaining 
medical  assistance,  he  necessarily  incurred  expense  in  and  about 
his  cure,  so  as  to  entitle  him  to  recover."  The  later  English  cases, 
however,  hold  that  there  can  be  no  recovery  for  such  expenses  un- 
less there  is  an  actual  or  constructive  relationship  of  master  and 
servant,  and,  therefore,  that  there  can  be  no  recovery  even  for 
medical  and  other  expenses  where  the  child  is  too  young  to  render 
services.66  There  are  cases  in  this  country  which  recognize  the 
same  doctrine.67 

These  cases  which  deny  to  the  parent  any  remedy  for  medical  or 
other  expenses  incurred  in  consequence  of  the  injury  to  the  child, 
except  as  incident  to  the  loss  of  service,  ignore  the  parental  relation 
and  obligation  as  an  independent  ground  of  recovery,  although  it  is 
clear  that  the  parent  has  sustained  a  pecuniary  loss  as  the  proxi- 
es? Dowl.  &  R.  133. 
ee  Grinnell  v.  Wells,  8  Scott,  N.  R.  741. 

67Whitaker  v.  Warren,  60  N.  H.  20,  49  Am.  Rep.  302;  Shields  v.  Tonge, 
15  Ga.  349,  356,  60  Am.  Dec.  698 ;  Matthews  v.  Missouri  Pac.  Ry.  Co.,  26  Mo. 
App.  75 ;  Dunn  v.  Cass  Ave.  &  T.  G.  Ry.  Co.,  21  Mo.  App.  188. 


374  EIGHTS  OF  PARENTS  AND  OF  CHILDREN  (Ch.  10 

mate  result  of  the  wrong.  In  this  country  the  prevailing  doctrine 
is  the  other  way,  and  in  favor  of  allowing  the  parent  to  recover  in- 
dependently of  any  question  as  to  loss  of  service.  "The  authorities 
in  this  country  approve  a  more  liberal  and  a  more  reasonable  doc- 
'trine,  and,  basing  the  right  of  action  upon  the  parental  relation,  in- 
stead of  master  and  servant,  allow  the  father  to  recover  his  conse- 
quential loss  irrespective  of  the  age  of  the  minor."  68  In  Dennis 
v.  Clark,69  which  is  a  leading  case  holding  this  doctrine,  it  was 
decided  after  careful  consideration,  and  a  review  of  the  authorities, 
that,  when  an  infant  residing  with  his  father  receives  such  an  in- 
jury as  would  give  the  child  a  right  of  action,  the  father,  who  is 
put  to  necessary  expense  in  the  care  and  cure  of  the  child,  may 
maintain  an  action  for  indemnity,  though  the  child  may  be  too 
young  to  render  any  service.  This  doctrine  casts  upon  the  wrong- 
doer responsibility  for  a  pecuniary  loss  flowing  approximately  from 
his  wrongful  act,  if  actually  sustained  by  the  parent  in  the  dis- 
charge of  his  parental  obligation  to  care  for  and  maintain  his  infant 
children,  without  regard  to  any  consideration  of  loss  of  service. 

It  has  been  held  in  a  late  case  in  New  York  that  the  parent  can- 
not recover  for  medical  and  surgical  expenses,  which,  according  to 
the  testimony  of  experts,  may  become  necessary  in  the  future, 
though  the  child  might  be  allowed  to  recover  therefor.70 

Other  Elements  of  Damage 

As  will  presently  be  seen,  the  courts  have  made  a  distinction  as 
regards  the  measure  of  damages,  between  actions  by  a  parent  for 
the  seduction  or  debauching  of  his  daughter  and  actions  for  other 
wrongs.  In  the  former  they  not  only  allow  the  parent  to  recover 
for  loss  of  his  daughter's  services,  and  for  medical  and  other  ex- 
penses incurred  in  caring  for  her,  but  they  recognize,  as  the  real 
gravamen  of  the  action,  the  wounded  feelings  and  mortification  of 
the  parent,  the  disgrace  brought  upon  his  family  by  the  wrong,  and 
the  corrupting  example  to  the  other  children,  and  allow  the  jury 

«8Fiuley  v.  Richmond  &  D.  R.  Co.  (C.  C.)  59  Fed.  419;  Dennis  v.  Clark, 
2  Cush.  (Mass.)  347,  48  Am.  Dec.  671;  Sykes  v.  Lawlor,  49  Cal.  236;  Dur- 
den  v.  Barnett,  7  Ala.  169;  Clark  v.  Bayer,  32  Qhio  St.  299,  30  Am.  Rep. 
593;  Trow  v.  Thomas,  70  Vt.  580,  41  Atl.  652;  Cuming  v.  Brooklyn  City 
R.  Co.,  109  N.  Y.  95,  16  N.  E.  65 ;  NETHERLAND-AMERICAN  STEAM  NAV. 
CO.  v.  HOLLANDER,  59  Fed.  417,  8  C.  C.  A.  169,  Cooley  Gas.  Persons  and 
Domestic  Relations,  198. 

«»  2  Cush.  (Mass.)  347,  48  Am.  Dec.  671. 

-o  Coining  v.  Brooklyn  City  R.  Co.,  109  N.  Y.  95,  16  N.  E.  65. 


§§  132-134)       ACTION   BY  PARENT   FOB  INJURIES   TO   CHILD  375 

to  take  these  matters  into  consideration  in  awarding  the  damages.71 
There  are  some  cases  in  which  this  principle  has  been  applied  in 
an  action  for  loss  of  service  from  other  injuries  than  seduction. 
It  has  been  held,  for  instance,  that  in, an  action  per  quod  servitium 
amisit,  brought  by  a  parent  for  an  assault  and  battery  on  his 
daughter,  the  jury,  in  assessing  the  damages,  had  a  right  to  con- 
sider the  injury  to  the  parent's  feelings,  and  to  the  character  of  the 
family.72  In  most  states  the  rule  is  otherwise,73  the  recovery  of 
such  damages  being  limited  to  actions  for  the  seduction  or  debauch- 
ing of  a  daughter. 

Remote  and  Proximate  Cause 

The  loss  of  service  or  expenses  incurred  by  the  parent  must  be 
the  proximate  result  of  the  wrongful  conduct  of  the  defendant,  or  he 
cannot  recover  therefor.  Thus,  as  will  be  seen  in  dealing  with 
seduction,  if  the  daughter  loses  her  health,  not  as  the  direct  result 
of  the  seduction,  but  because  of  mental  suffering  caused  by  her 
abandonment  by  the  seducer,  shame  resulting  from  exposure,  or 
other  similar  causes,  and  her  loss  of  health  results  in  the  loss  of 
her  services  to  her  father,  or  in  expenses  to  him,  the  seduction  is 
not  the  proximate  cause  of  the  loss,  and  the  father  cannot  maintain 
an  action  therefor.7*  The  same  principle  applies  in  the  case  of 
other  injuries. 

Adult  Children 

A  parent  may  maintain  an  action  for  the  loss  of  the  services  of 
an  adult  child  if  the  relationship  of  master  and  servant  exists  be- 
tween them.  In  such  a  case  the  relationship  will  not  be  implied, 
as  in  the  case  of  a  minor  child,  for  there  is  no  right  to  the  services 
of  an  adult  child  from  which  to  imply  service.  It  must  be  shown 
that  the  relationship  actually  exists.  The  question  has  generally 
arisen  in  cases  of  seduction  of  an  adult  daughter,  but  the  rule  ap- 
plies to  other  injuries  also.75 


TI  Post,  p.  382. 

T2  Trimble  v.  Spiller,  7  T.  B.  Mon.  (Ky.)  394,  18  Am.  Dec.  189.  And  see 
Klingman  v.  Holmes,  54  Mo.  304;  Magee  v.  Holland,  27  N.  J.  Law,  86,  72 
Am.  Dec.  341. 

TSCowden  v.  Wright,  24  Wend.  (N.  Y.)  429,  35  Am.  Dec.  633;  Whitney 
v.  Hitchcock,  4  Denio  (N.  Y.)  461. 

T*  Post,  p.  382. 

7  6  Mercer  v.  Jackson,  54  111.  397;  Palmer  v.  Baum,  123  111.  App.  584.  As 
to  seduction  of  daughter,  see  post,  p.  383. 


\ 

376  BIGHTS  OF  PARENTS  AND  OF  CHILDREN  (Ch.  10 

Who  may  Sue 

The  action  for  loss  of  services  caused  by  injury  to  a  child  is  not 
necessarily  always  in  the  father.  It  is  in  the  person  entitled  to  the 
services  of  the  child.  If  the  father  is  entitled,  then  the  action  must 
be  brought  by  him,  and  not  by  the  mother  or  any  other  person. 7P 
If  the  mother  is  entitled  to  the  child's  services,  either  because  of 
the  father's  death,  or  because  of  his  desertion,  leaving  the  child  for 
her  to  support,  she  may  sue.77  And  the  action  may  be  maintained 
by  any  person  who  stands  in  loco  parentis.78 

Action  for  Death  of  Child 

In  treating  of  husband  and  wife,  attention  was  called  to  the  rule, 
"Actio  personalis  moritur  cum  persona,"  and  it  was  shown  that,  by 
the  weight  of  authority,  it  was  applied  at  common  law  so  as  to  pre- 
vent an  action  by  one  spouse  for  a  wrongful  act  or  neglect  causing 
the  death  of  the  other.79  It  was  seen  that  if,  by  the  tortious  con- 
duct of  another,  a  wife  was  killed,  her  husband  could  not,  at  com- 
mon law,  recover  for  the  loss  of  her  society  or  services.  It  was  also 

TO  Vessel  v.  Cole,  10  Mo.  634,  47  Am.  Dec.  136;  Furman  v.  Van  Sise,  56 

N.  Y.  435,  15  Am.  Rep.  441;  Sargent  v.  ,  5  Cow.  (IS.  Y.)  106;  Ryan 

v.  Fralick,  50  Mich.  483,  15  N.  W.  561;  Jag.  Torts,  453. 

7  7  Bedford  v.  McKowl,  3  Esp.  119;  Natchez,  J.  &  C.  R.  Co.  v.  Cook,  63 
Miss.  38;  Savannah,  F.  &  W.  Ry.  Co.  v.  Smith,  93  Ga.  742,  21  S.  E.  157; 
Harford  County  Com'rs  v.  Hamilton,  60  Md.  340,  45  Am.  Rep.  739 ;  Kennedy 
v.  New  York  Cent.  &  H.  R.  R.  Co.,  35  Hun  (N.  Y.)  187;  Horgan  v.  Pacific 
Mills,  158  Mass.  402,  33  N.  E.  581,  35  Am.  St.  Rep.  504 ;  Franklin  v.  Butcher, 
144  Mo.  App.  660.  129  S.  W.  428 ;  McGarr  v.  National  &  Providence  Worsted 
Mills,  24  R.  I.  447,  53  Atl.  320,  60  L.  R.  A.  122,  96  Am.  St.  Rep.  749 ;  Abra- 
hams v.  Kidney,  104  Mass.  222.  6  Am.  Rep.  220;  Ellington  v.  Ellington,  47 
Miss.  329;  Davidson  v.  Abbott,  52  Vt.  570,  36  Am.  Rep.  767;  Gray  v.  Dur- 
land,  51  N.  Y.  424;  Keller  v.  Donnelly,  5  Md.  211.  But  see  South  v.  Den- 
niston,  2  Watts  (Pa.)  474.  A  widow,  who  has  remarried  and  who  is  not  con- 
tributing to  the  support  of  the  child,  cannot  recover  for  injury  not  result- 
ing in  death,  under  the  Pennsylvania  statute.  American  Steel  &  Wire  Co. 
v.  Tynon,  183  Fed.  949,  106  C.  C.  A.  289. 

78Whitaker  v.  Warren,  60  N.  H.  20,  49  Am.  Rep.  302;  Clark  v.  Bayer,  32 
Ohio  St.  299,  30  Am.  Rep.  593 ;  Fernsler  v.  Moyer,  3  Watts  &  S.  (Pa.)  416, 
39  Am.  Dec.  33;  Irwin  v.  Dearman,  11  East,  23;  Blanchard  v.  Tlsley,  120 
Mass.  487,  21  Am.  Rep.  535 ;  Saunders  v.  Alvido  &  Laserre,  52  Tex.  Civ.  App. 
356,  113  S.  W.  992 ;  City  of  Albany  v.  Lindsey,  11  Ga.  App.  573,  75  S.  E.  911 ; 
Ingersoll  v.  Jones,  5  Barb.  (N.  Y.)  661;  Bartley  v.  Richtmyer,  4  N.  Y.  38, 
58  Am.  Dec.  338;  Moritz  v.  Garnhart,  7  Watts  (Pa.)  302,  32  Am.  Dec.  762; 
Manvell  v.  Thomson,  2  Car.  &  P.  303;  Davidson  v.  Goodall,  18  N.  H.  423; 
Keller  v.  Donnelly,  5  Md.  211;  Ball  v.  Bruce,  21  111.  161 ;  Maguinay  v.  Saudek, 
5  Sneed  (Tenn.)  146;  Jag.  Torts,  454,  and  cases  there  collect od.  See  post, 
p.  384. 

7  »  Ante,  p.  121;   Tiff.  Death  Wrongf.  Act,  §§  1-18. 


§§  132-134)      ACTION   BY  PARENT  FOR  INJURIES   TO  CHILD  377 

seen  that  this  rule  has  been  very  generally  changed  by  statute.  The 
same  is  true  in  the  case  of  parent  and  child,  where  the  child  is  killed 
by  the  wrongful  act  or  omission  of  another.  Though  there  were 
some  cases  to  the  contrary,80  by  the  weight  of  authority,  at  common 
law  the  parent  could  not  recover  for  the  loss  of  the  child's  services, 
nor  for  his  expenses  resulting  from  the  wrong,  where  his  death  was 
immediate.81  Under  Lord  Campbell's  act,82  however,  and  the  sim- 
ilar statutes  which  have  been  enacted  in  this  country,  the  rule  is 
different ;  and,  wherever  a  child's  death  is  caused  by  the  wrongful 
act  or  omission  of  another,  his  parent,  or  his  executor  or  adminis- 
trator, for  the  parent's  benefit,  may  recover  damages  for  past  and 
prospective  loss  of  the  child's  services.  And  it  is  well  settled  in  this 
country  that,  when  suit  is  brought  under  the  statute,  there  may  be 
a  recovery  for  future  loss  of  services,  although  the  child  was  of  such 
tender  years  as  to  be  incapable  of  rendering  services.83  Even  under 
the  statutes,  the  damages  are  for  loss  of  service,  and  their  measure 
is  the  value  of  the  services,  past  and  prospective,  less  the  probable 
cost  of  support  and  maintenance.84  Beyond  what  the  law  will  im- 
ply as  between  parent  and  child,  no  proof  of  service  in  fact  is  nec- 
essary in  suing  under  the  statute.85 


80  Ford  v.  Monroe,  20  Wend.  (N.  Y.)  210  (since  overruled);  Plummer  v. 
Webb,  1  Ware,  69,  Fed.  Gas.  No.  11,234 ;  James  v.  Christy,  18  Mo.  162 ;  Shields 
v.  Yonge,  15  Ga.  349,  60  Am.  Dec.  698. 

si  Osborn  v.  Gillett,  L.  R.  8  Exch.  88  (Bramwell,  B.,  dissenting);  Skinner 
v.  Housatonic  R.  Corp.,  1  Gush.  (Mass.)  475,  48  Am.  Dec.  616;  Nickerson  v. 
Harriman,  38  Me.  277 ;  Covington  St.  Ry.  Co.  v.  Packer,  9  Bush  (Ky.)  455,  15  , 
Am., Rep.  725;  ,  Edgar  v.  Castello,  14  S.  C.  20,  37  Am.  Rep.  714;  Natchez, 
J.  &  C.  R.  Co.  v.  Cook,  63  Miss.  38;  Sherman  v.  Johnson,  58  Vt.  40,  2  Atl. 
707;  Jackson  v.  Pittsburgh,  C.,  C.  &  St.  L.  Ry.  Co.,  140  Ind.  241,  39  N.  E. 
663,  49  Am.  St.  Rep.  192;  Tiff.  Death  Wrongf.  Act,  §  11,  and  cases  there 
cited. 

sa  St.  9  &  10  Viet.  c.  93. 

ss  Ihl  v.  Forty-Second  St.  &  G.  St.  Ferry  R.  Co.,  47  N.  Y.  317,  7  Am.  Rep. 
450 ;  Oldfield  v.  New  York  &  H.  R.  Co.,  14  N.  Y.  310 ;  Foppiano  v.  Baker,  3 
Mo.  App.  560.  Both  parents  may  join  in  an  action  for  death  of  a  child  re- 
sulting from  breach  of  contract  to  properly  care  for  him.  Bailey  v.  College 
of  Sacred  Heart,  52  Colo.  116,  119  Pac.  1067. 

s*  Rockford,  R.  I.  &  St.  L.  R.  Co.  v.  Delaney,  82  111.  198,  25  Am.  Rep.  308; 
Rajnowski  v.  Detroit,  B.  C.  &  A.  R.  Co.,  74  Mich.  20,  41  N.  W.  847;  Penn- 
sylvania Co.  v.  Lilly,  73  Ind.  252 ;  Brunswig  v.  White,  70  Tex.  504,  8  S.  W.  85. 

ss  Duckworth  v.  Johnson,  4  Hurl.  &  N.  653;  Condon  v.  Railway  Co.,  16 
Ir.  C.  L.  415;  Ihl  v.  Forty-Second  St.  &  G.  St.  Ferry  R.  Co.,  47  N.  Y.  317, 
7  Am.  Rep.  450;  Little  Rock  &  Ft.  S.  Ry.  Co.  v.  Barker,  39  Ark.  491;  City 
of  Chicago  v.  Major,  18  111.  349,  68  Am.  Dec.  553. 


378  RIGHTS  OF  PARENTS  AND  OF  CHILDREN  (Ch.  10 

Furnishing  Intoxicating  Liquor  to  Child 

Perhaps,  even  at  common  law,  a  parent  could  maintain  an  action 
against  a  person  for  selling  or  furnishing  his  minor  child  with 
intoxicating  liquors,  whereby  the  parent  sustains  damage.  At  any 
rate,  in  many  states  such  a  right  of  action  is  given  by  statute,  so 
that  "where  liquor  is  sold  to  a  minor,  whereby  he  becomes  intoxi- 
cated, and  he  thereafter  becomes  sick  in  consequence  thereof,  and 
the  father  is  deprived  of  his  services  and  is  compelled  to  expend 
money  for  medical  attendance  upon  him,  the  father  may  maintain 
an  action,  under  the  civil  damage  law,  to  recover  the  damages  oc- 
casioned thereby."  8* 

ACTION  BY  PARENT  FOR  SEDUCTION  OR  DEBAUCH- 
ING OF  DAUGHTER 

135.  On  the  seduction  or  debauching  of  his  daughter,  resulting  ac- 

tually or  constructively  in  loss  of  service,  the  father,  or  any 
one  standing  in  loco  parentis,  has  a  right  of  action  against 
the  wrongdoer  for  the  loss  of  service  and  incidental  ex- 
penses. 

136.  In  such  a  case  damages  may  also  be  given  for  all  that  the  par- 

ent may  suffer  from  the  ruin  of  his  daughter,  the  disgrace 
to  his  family,  and  the  corrupting  example  to  his  other  chil- 
dren. 

137.  The  same  rules  apply  here  as  in  the  case  of  other  injuries,  as 

to  the  necessity  to  show  that  the  daughter  was  in  the  ac- 
tual or  constructive  service  of  the  plaintiff  at  the  time  of 
the  injury.  The  necessity  for  loss  of  service  has  been  dis- 
pensed with  by  statute  in  some  states. 

A  parent's  right  to  the  services  of  his  child  gives  him  a  right  of 
action  for  damages  arising  from  the  seduction  or  debauching  of  his 
daughter.87  At  common  law  the  daughter's  consent  to  the  inter- 

8«  Black,  Intox.  Liq.  §  285.    See  Id.  §§  277-337. 

8*  Bennett  v.  Allcott,  2  Term  R.  167 ;  Woodward  v.  Walton,  2  Bos.  &  P. 
(N.  R.)  476;  Blagge  v.  Ilsley,  127  Mass.  191,  34  Am.  Rep.  361;  Hubbell  v. 
Wheeler,  2  Alk.  (Vt.)  359;  Parker  v.  Meek,  3  Sneed  (Term.)  29;  Logan  v. 
Murray,  6  Serg.  &  R.  (Pa.)  175,  9  Am.  Dec.  422;  Ellington  v.  Ellington,  47 
Miss.  329;  Mercer  v.  Walmsley,  5  Har.  &  J.  (Md.)  27,  9  Am.  Dec.  4S6;  Sar- 
gent v.  ,  5  Cow.  (N.  Y.)  109;  Scarlett  v.  Norwood,  115  N.  C.  284,  20 

S.  E.  459.  If  a  marriage  is  fraudulently  Induced  by  a  man  who  already  has 
a  wife  living,  the  fraud  vitiates  the  parent's  consent,  and  an  action  may  be 


§§  135-137)         ACTION   FOR    SEDUCTION   OP   DAUGHTER  379 

course  prevented  her  from  maintaining  an  action  for  her  seduc- 
tion ; 88  but  her  consent  cannot  affect  her  parent's  rights,  and  is 
therefore  no  bar  to  his  action  for  the  loss  of  her  services  and  other 
damages  to  him.89 

From  the  earliest  period  the  courts  have  based  the  parent's  right 
of  action,  not  upon  the  seduction  or  debauching,  but  upon  the  loss 
of  his  dajaghl£r's_jeryjbes.  The  action  cannot  be  maintained  for 
the  mere  act  of  intercourse,  though  it  is  a  far  greater  injury  to  the 
father  than  any  mere  pecuniary  loss  he  may  sustain.  In  Eager  v. 
Grimwood  90  it  appeared  that  the  defendant  had  debauched  trie 
plaintiff's  daughter,  but  that  another,  and  not  he,  was  the  cause  of 
her  pregnancy;  and  it  was  therefore  held  that  the  plaintiff  could 
not  recover. 

In  its  origin  the  action  was  very  technical.  If  the  wrongdoer 
came  upon  the  father's  premises  and  debauched  the  daughter  there, 
the  parent  could  maintain  an  action  of  trespass  quare  clausum 
fregit,  and  lay  the  loss  of  service  and  other  damage  sustained  by. 
reason  of  the  intercourse  as  consequential  upon  and  in  aggravation 
of  the  trespass ;  or  he  could,  at  his  election,  bring  an  action  on  the 
case,  ignoring  the  trespass.  But  for  merely  debauching  a  man's 
daughter,  unaccompanied  by  an  unauthorized  entry  upon  his  prem- 
ises, the  action  had  to  be  in  case.  And  such  is  still  the  rule  at  com- 
mon law.01 

When  the  action  is  for  the  loss  of  service,  there  can,  of  course,  be 
no  recovery,  unless  the  relationship  of  master  and  servant  actually 
or  constructively  exists.82  And  the  cases  go  even  further,  and  hold 


maintained  by  him.  Lawyer  v.  Fritcher,  130  N.  Y.  239,  29  N.  E.  267,  14 
L.  R.  A.  700,  27  Am.  St.  Rep.  521. 

s  s  Paul  v.  Frazier,  3  Mass.  71,  3  Am.  Dec.  95;  Woodward  v.  Anderson,  9 
Bush  (Ky.)  624 ;  Jordan  v.  Hovey,  72  Mo.  574,  37  Am.  Rep.  447 ;  Weaver 
v.  Bachert,  2  Pa.  80,  44  Am.  Dec.  159;  Oberlin  v.  Upson,  84  Ohio  St.  Ill, 
95  N.  E.  511,  Ann.  Cas.  1912B,  1061.  But  this  has  been  changed  by  statute 
in  some  states.  See  Colly  v.  Thomas,  99  Misc.  Rep.  158,  163  N.  Y.  Supp.  432. 

8»  Koenke  v.  Bauer,  162  Mo.  App.  718,  145  S.  W.  506;  Reutkemeier  v.  Nolte, 
179  Iowa,  342,  161  N.  W.  290,  L.  R.  A.  1917D,  273. 

»o  1  Exch.  61. 

91  Mercer  v.  Walmsley,  5  Har.  &  J.  (Md.)  27,  9  Am.  Dec.  486,  and  cases 
cited  in  note  ,87,  supra. 

92  See  Dain  v.  Wycoff,  7  N.  Y.  191,  where  the  child  was  bound  out  as  an 
apprentice.     But  see,  also,  Bolton  v.  Miller,  6  Ind.  262,  holding  that  mere 
agreement  that  child  should  serve  another,  which  is  not  of  such  character 
as  to  prevent  father  from  claiming  the  services  of  the  child  at  any  time,  is 
uot  sufficient  to  bar  his  right  of  action.    And  see,  generally,  ante,  p.  370. 


380  BIGHTS  OP  PARENTS  AND  OF  CHILDREN  (Ch.  10 

that  no  action  at  all  can  be  maintained,  even  for  medical  and  other 
expenses  incurred  in  caring  for  the  daughter,  unless  the  relationship 
of  master  and  servant  exists  either. in  fact  or  in  contemplation  of 
law.98  As  has.  been  seen,  however,  in  this  country,  where  a  minor 
child  is  injured  by  the  wrongful  conduct  of  another,  and  the  parent 
incurs  expense  in  caring  for  and  curing  the  child,  many  courts  base 
the  parent's  right  of  action  for  indemnity  upon  the  parental  relation 
and  obligation  to  maintain  the  child,  instead  of  on  the  relation  of 
master  and  servant,  and  allow  a  recovery  irrespective  of  the  loss  of 
service.*4  There  is  no  good  reason  why  the  doctrine  of  these  cases 
sho'D»M  not  be  applied  to  cases  in  which  the  wrong  is  the  debauch- 
ing of  a  daughter. 

It  is  not  necessary  in  this  action,  any  more  than  in  an  action  for 
other  injuries  to  a  child  to  show  the  actual  performance  of  services 
by  a  minor  child.95  It  is  sufficient  to  show  that  the  parent  has  a 
right  to  the  daughter's  services,  if  she  is  a  minor,  and  service  will 
be  implied.96  So  the  mere  temporary  absence  of  the  daughter  from 
her  parents'  home  does  not  bar  the  right  to  maintain  the  action.97 

»3  Griflnell  v.  Wells,  7  Man.  &  G.  1033 ;  Harris  v.  Butler,  2  Mees.  &  W. 
539 ;  Abrahams  v.  Kidney,  104  Mass.  222,  6  Am.  Rep.  220 ;  Hartley  v.  Richt- 
myer,  4  N.  Y.  38,  53  Am.  Dec.  338 ;  Coon  v.  Moffet,  3  N.  J.  Law,  583,  4  Am. 
Dec.  392;  White  v.  Murtland,  71  111.  252,  22  Am.  Rep.  100;  Vossel  v.  Cole, 
10  Mo.  634,  47  Am.  Dec.  136 ;  Whitbourne  v.  Williams,  70  Law  J.  K.  B.  933, 
[1901]  2  K.  B.  722,  85  Law  T.  271. 

»<  Ante,  p.  372. 

»s  Snider  v.  Newell,  132  N.  C.  614,  44  S.  E.  354. 

»o  Maunder  v.  Venn,  Moody  &  M.  323 ;  Manvell  v.  Thomson,  2  Car.  &  P. 
303 ;  Herring  v.  Jester,  2  Houst.  (Del.)  66 ;  Parker  v.  Meek,  3  Sneed  (Tenn.> 
29;  Emery  v.  Gowen,  4  Greenl.  (Me.)  33,  16  Am.  Dec.  233;  Bolton  v.  Miller, 
6  Ind.  262;  Martin  v.  Payne,  9  Johns.  (N.  Y.)  387,  6  Am.  Dec.  288;  Mercer 
v.  Walmsley,  5  Har.  &  J.  (Md.)  27,  9  Am.  Dec.  486;  Kennedy  v.  Shea,  110 
Mass.  147,  14  Am.  Rep.  584;  White  v.  Murtland,  71  111.  250,  22  Am.  Rep. 
100;  Reutkemeier  v.  Nolte,  179  Iowa,  342,  161  N.  W.  290,  L.  R.  A.  1917D, 
273;  Ingwaldson  v.  Skrivseth,  7  N.  D.  388,  75  N.  W.  772.  But  see  Taylor 
v.  Daniel,  98  S.  W.  986,  30  Ky.  Law  Rep.  377. 

»T  Clark  v:  Fitch,  2  Wend.  (N.  Y.)  459,  20  Am.  Dec.  639;  Elder  v.  Warner 
(Sup.)  129  N.  Y.  Supp.  816;  Ingwaldson  v.  Skrivseth,  7  N.  D.  388,  75  N.  W. 
772;  Blagge  v.  Isley,  127  Mass.  191,  34  Am.  Rep.  361;  Emery  v.  Gowen,  4 
Greenl.  (Me.)  33,  16  Am.  Dec.  233.  In  Martin  v.  Payne,  9  Johns,  (N.  Y.) 
387,  6  Am.  Dec,  288,  the  plaintiff's  daughter,  who  was  under  age,  went,  with 
the  consent  of  her  father,  to  live  with  her  uncle,  for  whom  she  worked  when 
she  pleased,  and  he  agreed  to  pay  her  for  her  work;  but  there  was  na 
agreement  that  she  should  continue  to  live  in  his  house  for  any  fixed  time. 
While  in  her  uncle's  house  she  was  seduced  and  got  with  child.  Immediately 
afterwards  she  returned  to  her  father's  house,  where  she  was,  maintained, 
and  the  expense  of  her  lying  in  was  paid  by  him.  It  was  held  that  the 


§§  135-137)        ACTION   FOR  SEDUCTION   OP  DAUGHTER  381 

It  has  already  been  shown  in  a  preceding  section  when  the  relation- 
ship of  master  and  servant  is  deemed  to  exist  between  parent  and 
child,  and  the  rules  there  stated  are  applicable  in  cases  of  seduc- 
tion.98 

The  courts  have  made  a  distinction,  as  regards  the  measure  of 
damages,  between  actions  by  a  parent  for  the  seduction  or  debauch- 
ing of  his  daughter  and  actions  for  other  wrongs.  The  fiction  of 
loss  of  service  is  generally  upheld  even  in  cases  of  seduction ;  but 
the  courts  recognize  as  the  real  gravamen  of  the  action  the  wounded 
feelings  and  mortification  of  the  parent,  the  disgrace  brought  upon 
his  family  by  the  wrong,  and  the  corrupting  example  to  the  other 
children,  and  allow  the  jury  to  take  these  matters  into  considera- 
tion in  awarding  damages.98  As  was  said  by  Lord  Eldon:  "In 
point  of  form,  the  action  only  purports  to  give  a  recompense  for  loss 
of  service ;  but  we  cannot  shut  our  eyes  to  the  fact  that  this  is  an 
action  brought  by  a  parent  for  an  injury  to  her  child.  In  such  case 

I  am  of  opinion  that  the  jury  may  take  into  their  consideration  all 
that  she  can  feel  from  the  nature  of  the  loss.    They  may  look  upon 
her  as  a  parent  losing  the  comfort,  as  well  as  the  service,  of  her 
daughter,  in  whose  virtue  she  can  feel  no  consolation,  and  as  tfre 

father  could  maintain  an  action  against  -the  seducer.  In  Clark  v.  Fitch,  2 
Wend.  (N.  Y.)  459,  20  Am.  Dec.  639,  it  was  proved  upon  the  trial  of  a  similar 
action  that  the  plaintiff  told  his  daughter  that  she  might  remain  at  home  or 
go  out  to  service,  as  she  pleased,  but,  if  she  left  his  house,  she  must  take 
care  of  herself,  and  he  relinquished  all  claim  to  her  wages  and  services.  It 
was  contended  that  there  was  a  distinction  between  this  case  and  that  of 
Martin  v.  Payne,  supra,  on  the  ground  that  he  had  given  her  her  time  ab- 
solutely; but  the  court  held  that  the  personal  rights  of  the  father  were 
not  relinquished,  and  that  he  could  recover.  And  in  Mulvehall  v.  Millward, 

II  N.  Y.  343,  it  appeared  that  the  plaintiff's  minor  daughter,  who  had  left 
his  house  to  work  for  the  defendant,  was  seduced  by  the  latter  while  in 
his  employ,  and  became  pregnant.     She  thereafter  worked  at  other  places, 
and  did  not  return  to  her  father's  house;    nor  did  it  appear  that  she  had 
any  intention  to  return  there  until  after  her  confinement  and  the  birth  of 
her  child.     It  was  not  shown  that  her  father  took  any  care  of  her,  or  ex- 
pended any  money  on  her  account,  during  her  pregnancy  or  sickness.     It 
was  held  that,  as  the  father  had  not  surrendered  his  right  to  her  services, 
he  could  maintain  an  action  for  her  seduction. 

»s  Ante,  p.  369,  where  the  cases  on  seduction  as  well  as  on  other  injuries 
are  collected,  and  the  conflicts  shown. 

ssBlagge  v.  Ilsley,  127  Mass.  191,  34  Am.  Rep.  361;  Bedford  v.  McKowl, 
3  Esp.  119;  Irwin  v.  Dearman,  11  East,  23;  Barbour  v.  Stephenson  (C.  C.) 
32  Fed.  66;  Clem  v.  Holmes,  33  Grat.  (Va.)  722,  36  Am.  Rep.  793;  Rollins 
v.  Chalmers,  51  Vt.  592;  Garretson  v.  Becker,  52  111.  App.  255;  Russell  v. 
Chambers,  31  Minn.  54,  16  N.  W.  458 ;  Elder  v.  Warner  (Sup.)  129  N.  Y.  Supp. 
816;  Dwire  v.  Stearns  (N.  D.)  172  N.  W.  69;  Tillotson  v.  Currin,  176  N.  C. 


382  RIGHTS  OF  PARENTS   AND  OF  CHILDREN  (Ch.  10 

parent  of  other  children,  whose  morals  may  be  corrupted  by  her  ex- 
ample." l 

Some  states,  in  recognition  of  the  principle  that  the  real  grava- 
men of  the  action  is  not  the  loss  of  service,  but  the  wounded  feel- 
ings, mortification,  and  disgrace  of  the  parent,  have  abolished,  fry 
statute,  the  fiction  of  loss  of  service,  and  allow  the  parent  to  recover 
without  proof  of  such  loss.2  In  an  interesting  case  the  Supreme 
Court  of  Kansas  has  held  that,  in  view  of  the  provisions  of  the 
Code  abolishing  forms  of  action  and  feigned  issues,  the  action 
would  lie  by  virtue  of  the  parental  relation  alone,  and  this  irrespec- 
tive of  the  fact  that  the  daughter  had  attained  her  majority.8 

As  stated  in  treating  generally  of  a  parent's  right  of  action  for  in- 
juries to  his  child,  the  loss  of  services  or  expenses  must  be  the  prox- 
imate result  of  the  defendant's  wrong,  or  the  parent  cannot  recover. 
The  principle  applies  to  action  by  a  parent  for  the  seduction  or  de- 
bauching of  his  daughter.  If  the  daughter,  for  instance,  loses  her 
health,  not  as  the  direct  result  of  the  seduction,  but  because  of  men- 
tal suffering  caused  by  her  abandonment  by  the  seducer,  shame  re- 
sulting from  exposure,  or  other  similar  causes,  and  her  ill  health 
results  in  the  loss  of  her  services  to  her  father,  or  in  medical  or  other 
expenses,  the  loss  to  the  father  is  too  remote  a  consequence  of  the 
seduction,  and  he  cannot  maintain  an  action.4  If,  however,  mental 
distress  or  disease  is  the  proximate  result  of  the  intercourse,  as 
where  it  is  accomplished  under  circumstances  of  violence  or  fraud, 
and  impairment  of  health,  and  consequent  expense  or  loss  of  serv- 


479,  97  S.  E.  395 ;  Haeissig  v.  Decker,  139  Minn.  422,  166  N.  W.  1085 ;  Felk- 
ner  v.  Scarlet,  29  Ind.  154;  Phelin  v.  Kenderdine.  20  Pa.  354;  Hudkins  v. 
Haskins,  22  W.  Va.  645 ;  Klopfer  v.  Bromine,  26  Wis.  372 ;  Dain  v.  Wyckoff, 
18  N.  Y.  45,  72  Am.  Dec.  493 ;  Hatch  v.  Fuller,  131  Mass.  574 ;  Parker  v.  Mon- 
teith,  7  Or.  277 ;  Emery  v.  Gowen,  4  Greenl.  (Me.)  33,  16  Am.  Dec.  233 ;  Cook 
v.  Bartlett,  179  Mass.  576,.  61  N.  E.  266 ;  Mighell  v.  Stone,  175  111.  261,  51 
N.  E.  906,  affirming  74  111.  App.  129 ;  Middleton  v.  Nichols,  62  N.  J.  Law,  636, 
43  Atl.  575,  Cooley  Gas.  Persons  and  Domestic  Relations,  204. 

1  Bedford  v.  McKowl,  3  Esp.  119. 

2  Hein  v.  Holdridge,  78  Minn.  468,  81  N.  W.  522  (applying  Gen.  St.  1894,  § 
5163)  Schmit  v.  Mitchell,  59  Minn.  251,  61  N.  W.  140  (applying  Gen.  St.  1878, 
c.  66,  §  33) ;    Stoudt  v.  Shepherd,  73  Mich.  588,  41  N.  W.  696  (applying  How. 
Ann.  St.  1882,  §  7779) ;   Anderson  v.  Aupperle,  51  Or.  556,  95  Pac.  330  (apply- 
ing B.  &  C.  Comp.  §  35).    And  see  Fry  v.  Leslie,  87  Va.  269,  12  S.  E.  671. 

3  Anthony  v.  Norton,  60  Kan.  341,  56  Pac.  529,  44  L.  R.  A.  757,  72  Am. 
St.  Rep.  360  (applying  Code  Civ.  Proc.  §§  6.  7,  11GJ.    But  see  Kaufman  v.  Clark, 
141  La.  316,  75  South.  65,  L.  R.  A.  1917E,  756. 

*  Boyle  v.  Brandon,  13  Mees.  &  W.  738 ;   Knight  v.  Wilcox,  14  N.  Y.  413. 


§§  135-137)         ACTION   FOB  SEDUCTION   OP  DAUGHTER  383 

ice  to  the  father  follow,  the  father  may  maintain  an  action.  It  is  not 
necessary  that  the  intercourse  shall  have  resulted  in  pregnancy  or 
sexual  disease.6  Loss  sustained  in  consequence  of  a  venereal  dis- 
ease caused  by  the  intercourse  is  not  too  remote.6 

A  parent  may  maintain  an  action  for  loss  of  the  services  of  an 
adult  child,  if  the  relationship  of  master  and  servant  exists  between 
them.  Under  such  circumstances  an  action  will  lie  for  seducing 
or  debauching  an  adult  daughter,  and  thereby  causing  a  loss  of  serv- 
ices ;  and  the  recovery  may,  as  in  the  case  of  a  minor  daughter,  in- 
clude damages  for  wounded  feelings,  mortification,  etc.7  In  the 
case  of  an  adult  child,  however,  the  relationship  of  master  and  serv- 
ant will  not  be  implied,  as  in  the  case  of  a  minor  child,  but  it  must 
be  shown  that  the  relation  actually  existed.8  Proof  of  any  actual 
service,  however  slight,  has  been  held  sufficient.9  And  it  has  been 
held  that  service  may  be  presumed  where  an  adult  daughter  con- 
tinues to  live  with  her  father.10 

Though  the  right  to  maintain  an  action  for  the  seduction  or  de- 
bauching of  a  child  is  primarily  in  the  father,11  it  is  not  necessarily 
limited  to  him.  On  his  death  or  desertion,  the  action  may  be  main- 


's Abrahams  v.  Kidney,  104  Mass.  222,  6  Am.  Rep.  220 ;  Van  Horn  v.  Free- 
man, 6  N.  J.  Law,  322,  Manvell  v.  Thomson,  2  Car.  &  P.  303 ;  Blagge  v.  Ilsley, 
127  Mass.  191,  34  Am.  Rep.  361 ;  Briggs  v.  Evans,  27  N.  C.  16. 

e  White  v.  Nellis,  31  N.  Y.  405,  88  Am.  Dec.  282. 

7  Bennett  v.  Allcott,  2  Term  R.  166 ;  Davidson  v.  Abbott,  52  Vt.  570,  36 
Am.  Rep.  767;  Herring  v.  Jester,  2  Houst.  (Del.)  66;  Sutton  v.  Huffman,  32 
N.  J.-Law,  58;  Bayles  v.  Burgard,  48  111.  App.  371;  Mercer  v.  Walmsley, 
5  Ear.  &  J.  (Md.)  27,  9  Am.  Dec.  486;  Lee  v.  Hodges,  13  Grat  (Va.)  726; 
Vessel  v.  Cole,  10  Mo.  634,  47  Am.  Dec.  136 ;  Nickleson  v.  Stryker,  10  Johns. 
(N.  Y.)  115,  6  Am.  Dec.  318 ;  Thompson  v.  Millar,  1  Wend.  (N.  Y.)  447 ;  Pat- 
terson v.  Thompson,  24  Ark.  55;  Briggs  v.  Evans,  27  N.  C.  21;  Hartman  v. 
McCrary,  59vMo.  App.  571. 

s  Harper  v.  Luffkin,  7  Barn.  &  C.  387 ;  Bartley  v.  Richtmyer,  4  N.  Y.  38, 
53  Am.  Dec.  338;  Parker  v.  Meek,  3  Sneed  (Tenn.)  29;  Nickleson  v.  Stryker, 
10  Johns.  (N.  Y.)  115,  6  Am.  Dec.  318 ;  and  cases  cited  in  note  75,  supra. 

»  Beaudette  v.  Goyne,  87  Me.  534,  33  Atl.  23.  And  see  Wallace  v.  Clark, 
2  Overt.  (Tenn.)  93,  5  Am.  Dec.  654.  See,  also,  cases  cited  above. 

10  See  Sutton  v.  Huffman,  32  N.  J.  Law,  58;    Brown  v.  Ramsay,  29  N.  J. 
Law,  118;    Briggs  v.  Evans,  27  N.  C.  21;    Wilhoit  v.  Hancock,  5  Bush  (Ky.) 
567.     See  Hartman  v.  McCrary,  59  Mo.  App.  571.     In  Palmer  v.  Baum,  123 
111.  App.  584,  it  was  held  that  a  father  may  recover  for  loss  of  services  of 
an  adult  daughter,  who,  though  married,  was  separated  from  her  husband 
and  was  a  member  of  the  father's  family. 

11  Mulvehall  v.  Millward,  11  N.  Y.  243 ;   Scarlett  v.  Norwood,  115  N.  C.  284, 
20  S.  E.  459. 


384  BIGHTS  OF  PARENTS  AND  OF  CHILDREN  (Ch.  10 

tained  by  the  mother.18  And,  generally,  an  action  will  lie  by  any 
person  who  stands  in  loco  parentis,  and  is  therefore  entitled  to  the 
child's  services.18 


ACTION  BY  PARENT  FOR  ABDUCTING,  ENTICING,  OR 
HARBORING  CHILD. 

138.  A  parent,  or  any  one  standing  in  loco  parentis,  has  a  right  of 

action  for  loss  of  services  and  incidental  expenses  against 
one  who  abducts  or  wrongfully  entices  or  harbors  his  child. 

139.  The  same  rules  apply  here  as  in  the  case  of  other  injuries,  as 

to  the  necessity  to  show  the  actual  or  constructive  rela- 
tionship of  master  and  servant. 

The  right  of  a  parent  to  the  custody  and  services  of  his  minor 
children  gives  him  a  right  of  action  against  any  one  who  abducts 
or  designedly  entices  his  child  away  from  him,  or  who  harbors  the 

12  Ante,  p.  355;  Bedford  v.  McKowl,  3  Esp.  119;  Furman  v.  Van  Sise,  56 
N.  Y.  435,  15  Am.  Rep.  441;  Heaps  v.  Dunham,  95  111.  583;  Abrahams  v. 
Kidney,  104  Mass.  222,  6  Am.  Rep.  220 ;  Ellington  v.  Ellington,  47  Miss.  329 ; 
Davidson  v.  Abbott,  52  Vt.  570,  36  Am.  Rep.  767;  Anthony  v.  Norton,  60 
Kan.  341,  56  Pac.  529,  44  L.  R.  A.  757,  72  Am.  St.  Rep.  360 ;  Gray  v.  Durland, 
50  Barb.  (N.  Y.)  100;  Id.,  51  N.  Y.  424;  Keller  v.  Donnelly,  5  Md.  211;  Coon 
v.  Moffet,  3  N.  J.  Law,  583,  4  Am.  Dec.  392 ;  Hammond  v.  Corbett,  50  N.  H. 
501,  9  Am.  Rep.  288;  Matthewson  v.  Perry,  37  Conn.  435,  9  Am.  Rep.  339. 
But  see  South  v.  Denniston,  2  Watts  (Pa.)  474.  A  wife  may  sue  as  next  friend 
of  her  insane  husband  for  seduction  of  their  daughter.  Abbott  v.  Hancock, 
123  N.  C.  99,  31  S.  E.  268.  In  Coon  v.  Moffet,  3  N.  J.  Law,  583,  4  Am.  Dec. 
392,  it  was  held  that  an  action  might  be  maintained  by  the  mother  for  the 
seduction  of  her  daughter  during  the  father's  lifetime,  and  while  the  daugh- 
ter was  in  the  constructive  service  of  her  father,  where  the  mother  after 
the  father's  death,  supported  and  cared  for  the  daughter,  paid  her  lying-in 
expenses,  and  became  entitled  to  and  lost  her  services;  the  loss  of  services 
being  considered  the  gist  of  the  action.  And  see  Parker  v.  Meek,  3  Sneed 
(Tenn.)  29.  But  see,  contra,  Logan  v.  Murray,  6  Serg.  &  R.  (Pa.)  175,  9  Am. 
Dec.  422 ;  Vessel  v.  Cole,  10  Mo.  634,  47  Am.  Dec.  136. 

is  Ante,  p.  356 ;  Irwin  v.  Dearman,  11  East,  23 ;  Manvell  v.  Thomson,  2 
Car.  &  P.  303 ;  Davidson  v.  Goodall,  18  N.  H.  423 ;  Keller  v.  Donnelly,  5  Md. 
211 ;  Ball  v.  .Bruce,  21  111.  161 ;  Tittlebaum  v.  Boehmcke,  81  N.  J.  Law,  697, 
80  Atl.  323,  35  L.  R.  A.  (N.  S.)  1062,  Ann.  Cas.  1912D,  298;  Maguinay  v. 
Saudek,  5  Sneed  (Tenn.)  146;  Bracy  v.  Kibbe,  31  Barb.  (N.  Y.)  273;  Inger- 
soll  v.  Jones,  5  Barb.  (N.  Y.)  661.  But  see  Bartley  v.  Richtmyer,  4  N.  Y.  38, 
53  Am.  Dec.  338.  The  provisions  of  the  Oregon  statute  (B.  &  C.  Comp.  § 
35)  giving  the  father  and  mother  the  right  to  sue  for  seduction  of  daughter, 
irrespective  of  right  to  services,  does  not  affect  the  common-law  right  of  a 
grandfather,  in  whose  household  the  female  lives,  to  sue  for  her  seduction. 
Anderson  v.  Aupperle,  51  Or.  556,  95  Pac.  330. 


§§  138-139)      ABDUCTING,  ENTICING,  OR  HARBORING  CHILD  385 

child,  knowing  that  it  has  wrongfully  left  its  home.1*  The  parent 
may  sue  either  in  assumpsit  or  in  tort.15  The  action  in  assumpsit 
is  on  the  theory  that  the  defendant  has  impliedly  undertaken  to  pay 
for  the  services  of  the  child.16  The  action  in  tort  is  the  ordinary 
action  of  trespass  on  the  case  for  the  wrong  and  the  consequent 
loss  of  the  child's  services.17  It  has  also  been  held  that  an  action 
will  lie  in  trespass  vi  et  armis,  for  the  loss  of  the  child's  society, 
without  any  allegation  of  loss  of  service.18  The  intent  of  a  person 
harboring  a  child  who  has  run  away  from  home  is  material.  The 
employment,  in  good  faith,  of  a  runaway  child,  without  knowledge 
that  he  has  left  his  home  wrongfully,  is  not  a  wrong.19 

In.  an  action  for  abducting,  enticing,  or  harboring,  the  recovery 
may  include  the  expense  to  which  the  plaintiff  has  been  put  in  re- 
gaining the  custody  of  the  child.20    In  such  an  action  as  this,  the 
,   gist  of  the  action  is  the  loss  of  the  child's  services,  and  the  relation 

i*  Evans  v.  Walton,  L.  R.  2  C.  P.  615 ;  Everett  v.  Sherfey,  1  Iowa,  356 ; 
Butterfield  v.  Ashley,  6  Gush.  (Mass.)  249 ;  Stowe  v.  Heywood,  7  Allen  (Mass.) 
118;  Caughey  v.  Smith,  50  Barb.  (N.  Y.)  351;  Moritz  v.  Garnhart,  7  Watts 
(Pa.)  302,  32  Am.  Dec.  762;  Grand  Rapids  &  I.  R.  Co.  v.  Showers,  71  Ind. 
451 ;  Thompson  v.  Howard,  31  Mich.  309 ;  Selman  v.  Barnett,  4  Ga.  App.  375, 
61  S.  E.  505;  Vaughan  v.  Rhodes,  2  McCord  (S.  C.)  227,  13  Am.  Dec.  713; 
Magee  v.  Holland.  27  N.  J.  Law,  86,  72  Am.  Dec.  341 ;  Plummer  v.  Webb,  4 
Mason,  380,  Fed.  Cas.  No.  11,233;  Sargent  v.  Mathewson,  38  N.  H.  54.  See 
Loomis  v.  Deets  (Md.)  30  Atl.  612.  The  action  cannot  be  maintained  by 
the  mother,  if  the  father  is  alive  and  resides  with  her.  Soper  v.  Igo,  Walker 
Co.,  121  Ky.  550,  89  S'.  W.  538,  1  L.  R.  A.  (N.  S.)  362,  123  Am.  St.  Rep.  212, 
11  Ann.  Cas.  1171. 

is  Thompson  v.  Howard,  31  Mich.  309.  / 

16  Thompson  v.  Howard,  31  Mich.  309. 

IT  Evans  v.  Walton,  L.  R.  2  C.  P.  615 ;  Jones  v.  Tevis,  4  Litt.  (Ky.)  25,  14 
Am.  Dec.  98 ;  Sargent  v.  Mathewson,  38  N.  H.  54 ;  Noice  v.  Brown,  39  N.  J. 
Law,  569. 

is  Kirkpatrick  v.  Lockhart,  2  Brev.  (S.  C.)  276;  Vaughan  v.  Rhodes,  2  Mc- 
Cord (S.  C.)  227,  13  Am.  Dec.  713;  Magnuson  v.  O'Dea,  75  Wash.  574,  135 
Pac.  640,  48  L.  R.  A.  (N.  S.)  327,  Ann.  Cas.  1915B,  1230.  And  see  3  Bl.  Comm. 
140.  But  see  Jones  v.  Tevis,  4  Litt.  (Ky.)  25,  14  Am.  Dec.  98.  In  Washburn 
v.  Abrams,  122  Ky.  53,  90  S.  W.  997,  it  was  held  that  a  parent  may  main- 
tain an  action  for  abduction  and  detention  of  a  child,  based  on  the  principle 
of  the  parent's  right  to  the  child's  services,  though  the  child  renders  nt> 
services,  in  which  recovery  may  be  had  for  injury  to  feelings  and  for  loss 
of  companionship  of  the  child,  as  well  as  loss  of  services.  But  no  action 
will  lie  for  loss  of  love  and  affection.  Miles  v.  Cuthbert  (Sup.)  122  N.  Y. 
Supp.  703. 

19  Butte^field  y.  Ashley,  6  Cush."  (Mass.)  249;    Caughey  v.  Smith,  47  N.  Y. 
244;    Kenney  v.  Baltimore  &  O.  R.  Co.,  101  Md.  490,  61  Atl.  581,  1  L.  R.  A. 
(N.  S.)  205.     Sargent  v.  Mathewson,  38  N.  H.  54. 

20  Magee  v.  Holland,  27  N.  J.  Law,  86,  72  Am.  Dec.  341. 
TIFF.P.&  D.REL.(3o  ED.)— 25 


386  RIGHTS   OF  PARENTS  AND  OF  CHILDREN  (Ch.  10 

of  master  and  servant,  actual  or  constructive,  between  the  plaintiff 
and  the  child,  must  be  shown.21  A  father,  for  instance,  cannot 
maintain  an  action  for  enticing  away  his  son,  whom  he  has  suffer- 
ed to  remain  under  the  custody  of  his  mother,  from  whom  he  (the 
father)  is  separated,  and  to  be  supported  and  employed  by  her.22 
The  rules  as  to  constructive  service  are  the  same  in  these  as  in 
other  cases.28 

PARENT'S  RIGHTS  IN  CHILD'S  PROPERTY 

140.  Apart  from  his  child's  earnings  a  parent,  as  such,  has  no  rights 
in  property  acquired  by  his  child. 

Whatever  property  a  child  may  acquire  in  any  manner,  except  as 
compensation  for  services  rendered  by  him,  belongs  to  him  abso- 
lutely, and  the  parent,  as  such,  has  no  claim  to  it.2*  "He  has  no  title 
to  the  property  of  the  child,  nor  is  the  capacity  or  right  of  the  lat- 
ter to  take  property  or  receive  money  by  grant,  gift,  or  otherwise, 
except  as  a  compensation  for  services,  in  any  degree  qualified  or 
limited  during  minority.  Whatever,  therefore,  an  infant  acquires 
which  does  not  come  to  him  as  a  compensation  for  services  render- 
ed, belongs  absolutely  to  him,  and  his  father  cannot  interpose  any 
claim  to  it,  either  as  against  the  child,  or  as  against  third  persons 
who  claim  title  or  possession  from  or  under  the  infant."  26  It  fol- 
lows from  this  that  one  who  pays  money  belonging  to  a  child  to 
his  parent  does  so  at  his  own  risk,  and  will  not  be  protected  by  the 
parent's  discharge.26  A  parent  has  no  implied  authority  to  compro- 
mise or  settle  a  cause  of  action  of  his  infant  child,27  nor  can  he,  by 


"Magee  v.  Holland,  27  N.  J.  Law,  86,  72  Am.  Dec.  341;  Butterfleld  v. 
Ashley,  6  Gush.  (Mass.)  249;  Wodell  v.  Coggeshall,  2  Mete.  (Mass.)  89,  35 
Am.  Dec.  391. 

22  Wodell  v.  Coggeshall,  2  Mete.  (Mass.)  89,  35  Am.  Dec.  391. 

as  Ante,  p.  367. 

2  *  Banks  v.  Conant,  14  Allen  (Mass.)  497;  Keeler  v.  Fassett,  21  Vt.  539,  52 
Am.  Dec.  71;  Jackson  v.  Combs,  7  Cow.  (N.  Y.)  36;  Hopkins  v.  Lee,  162 
Iowa,  165,  143  N.  W.  1002 ;  Rhoades  v.  McNulty,  52  Mo.  App.  301. 

26  Banks  v.  Conant,  14  Allen  (Mass.)  497. 

"Dagley  v.  Tolferry,  1  P.  Wms.  285;  Perry  v.  Carmichael,  95  111.  519; 
Clark  v.  Smith,  13  S.  C.  585 ;  Linton  v.  Walker,  8  Fla.  144,  71  Am.  Dec.  105 ; 
Brown  v.  State,  42  Ala.  540. 

27  Missouri  Pac.  Ry.  Co.  v.  Lasca,  79  Kan.  311,  99  Pac.  616,  21  L.  R.  A. 
(N.  S.)  338,  17  Ann.  Cas.  605;    Kirk  v.  Middlebrook,  201  Mo.  245,  100  S.  W. 


§  141)  GIFTS,  CONVEYANCES,  AND  CONTRACTS  387 

reason  of  the  relationship  alone,  accept  payment  of,  and  satisfy, 
a  judgment  in  favor  of  the  child.28 

Where  a  child  has  not  been  emancipated,  but  is  supported  by  his 
parent,  his  services,  as  we  have  seen,  belong  to  the  parent.  His 
earnings  from  services  rendered  for  another,  without  a  gift  of  them 
to  him  by  the  parent,  stand  on  the  same  footing,  and  belong  to  the 
parent.  And  so  it  is  with  property  purchased  with  his  earnings.29 
What  is  given  to  a  child  by  his 'parent  in  the  way  of  support  and 
maintenance,  and  for  purposes  of  education,  as  clothing,  school 
books,  etc.,  belongs  to  the  parent,  and  he  may  reclaim  it,  or  recover 
damages  for  its  injury.80  But  what  is  given,  not  in  the  way  of 
support  and  maintenance,  but  with  the  intention  that  it  shall  be- 
come the  property  of  the  child,  will  become  his.81  And  this  is  true 
of  a  gift  of  his  earnings.88 

GIFTS,    CONVEYANCES,    AND    CONTRACTS    BETWEEN 
PARENT  AND  CHILD 

141.  Gifts,  conveyances,  and  contracts  between  parent  and  child 
are  as  valid  as  if  between  strangers.    But — 

(a)  A  gift  or  conveyance  from  child  to  parent,  or  a  contract  ben- 

eficial to  the  parent,  is  presumed  to  have  been  made  under 
parental  influence,  and  to  be  voidable  by  the  child,  if  made 
before  or  shortly  after  attaining  his  majority;  and  the 
parent  must  show  that  there  was  no  undue  influence. 

(b)  Gifts,  conveyances,  and  contracts  by  a  minor  child  are  void- 

able at  his  option,  on  the  ground  of  infancy. 

A  gift  from  a  parent  to  his  child,  accompanied  by  delivery,  is  as 
valid  as  a  gift  between  strangers.38  Delivery  of  a  gift  from  a  father 

450;    Leslie  v.  Proctor  &  Gamble  Mfg.  Co.,  102  Kan.  159,  169  Pac.  193,  L.  R. 
A.  1918C,  55. 

28  Paskewie  v.  East,  St.  L.  &  S.  Ry.  Co.  281  111.  385,  117  N.  E.  1035,  L.  R. 
A.  1918C,  52,  reversing  206  111.  App.  131. 

29  Ante,  p.  354. 

so  Dickinson  v.  Winchester,  4  Gush.  (Mass.)  114,  50  Am.  Dec.  760;  Parrne- 
lee  v.  Smith,  21  111.  620;  Prentice  v.  Decker,  49  Barb.  (N.  Y.)  21. 

si  Wheeler  v.  St.  Joseph  &  W.  Ry.  Co.,  31  Kan.  640,  3  Pac.  297;  Grangiac  v. 
Arden,  10  Johns.  (N.  Y.)  293 ;  Dickinson  v.  Winchester,  4  Gush.  (Mass.)  114, 
50  Am.  Dec.  760. 

32  Morse  v.  Welton,  6  Conn.  547,  16  Am,  Dec.  731;    ante,  p.  363.    As  to  gift 
of  earnings  as  against  creditors,  see  ante,  p.  357. 

33  May  v.  May,  33  Beav.  81,  87 ;   Sanborn  v.  Goodhue,  28  N.  H.  48,  59  Am. 


388  RIGHTS  OF  PARENTS  AND  OP  CHILDREN  (Ch.  10 

to  his  child,  when  the  property  remains  in  the  family,  is  often  diffi- 
cult to  prove ;  but,  when  the  gift  is  in  'fact  shown  to  have  been  fully 
executed  by  delivery,84  it  will  be  upheld.  A  child  may  likewise 
make  a  valid  gift  to  its  parent,  if  the  gift  is  not  tainted  with  undue 
parental  influence.86  The  same  is  true  of  conveyances  between  par- 
ent and  child.36  And  it  is  also  true  of  contracts  between  them. 
The  relationship  of  parent  and  child  imposes  no  disability  upon 
the  parties  to  contract  with  each  other.  Their  contracts,  in  the 
absence  of  undue  influence  by  the  parent,  are  just  as  valid  as  con- 
tracts between  strangers.87 

As  will  be  seen  in  a  subsequent  chapter,  an  infant  is  not  bound 
Ly  his  contracts,  gifts,  or  conveyances  if  he  chooses  to  avoid  them 
on  attaining  his-  majority ;  but  the  other  party,  being  an  adult,  is 
bound  if  the  infant  elects  to  hold  him.88  The  principles  governing 
contracts  and  conveyances  by  infants  must  apply  to  contracts  and 
conveyances  between  a  parent  and  his  minor  child. 

Because  of  the  parental  relation  and  the  opportunity  it  affords 
for  the  exercise  of  undue  influence  by  the  parent  over  the  child,  a 
contract  between  parent  and  child,  beneficial  to  the  parent,  or  a 
gift  or  conveyance  by  a  child  to  his  parent,  made  before  or  shortly 
after  the  child  has  attained  his  majority,  will  be  presumed  to  have 
been  the  result  of  undue  influence  by  the  parent,  and  may  be 
avoided  by  the  child,  unless  the  parent  shows  that  no  undue  in- 
Dee.  398;  Kellogg  v.  Adams,  51  Wis.  138,  8  N.  W.  115,  37  Am.  Rep.  815; 
In  re  Acken's  Estate,  144  Iowa,  519,  123  N.  W.  187,  Ann.  Cas.  1912A,  1166; 
Hawthorne  v.  Jenkins,  182  Ala.  255,  62  South.  505,  Ann.  Cas.  1915D,  707; 
Dodd  v.  McCraw,  8  Ark.  84,  46  Am.  Dec.  301 ;  Danley  v.  Rector,  10  Ark.  211, 
50  Am.  Dec.  242;  Martrick  v.  Linfield,  21  Pick.  (Mass.)  325,  32  Am.  Dec. 
265 ;  Kerrigan  v.  Rautigan,  43  Conn.  17 ;  Pierson  v.  Heisey,  19  Iowa,  114 ; 
Hillebrant  v.  Brewer,  6  Tex.  45,  55  Am.  Dec.  757;  Sims  v.  Sims'  Adm'j,  8 
Port.  (Ala.)  449,  33  Am.  Dec.  293.  Where  there  is  a  donation  from  a  parent 
to  the  child,  there  is  no  presumption  of  undue  influence.  Neal  v.  Neal,  155 
Ala.  604,  47  South.  66 ;  Sanders  v.  Gurley,  153  Ala.  459,  44  South.  1022. 

3*  See  cases  above  cited.  It  requires  less  positive  evidence  to  establish  a 
delivery  of  a  gift  from  a  father  to  his  children  than  it  does  between  persons 
who  are  not  related.  Jenning  v.  Rohde,  99  Minn.  335,  109  N.  W.  597. 

35  Note,  39,  infra. 

88  Taylor  v.  Staples,  8  R.  I.  170,  5  Am.  Rep.  556 ;  Kennedy  v.  McCann,  101 
Md.  643,  61  Atl.  b25;  Powers  v.  Powers,  46  Or.  479,  80  Pac.  1058;  Jenning 
v.  Rohde,  99  Minn.  335,  109  N.  W.  597;  Becker  v.  Schwerdtle,  6  Cal.  App. 
462,  92  Pac.  398.  A  deed  by  a  father  to  his  bastard  son  is  valid.  Hall  v. 
Hall,  82  S.  W.  300,  26  Ky.  Law  Rep.  610. 

3T  Abbott  v.  Converse,  4  Allen  (Mass.)  530;  Hall  v.  Hall,  44  N.  H.  293; 
Steel  v.  Steel,  12  Pa.  64. 

ss  Post,  p.  495. 


§  141)  GIFTS,  CONVEYANCES,  AND  CONTRACTS  389 

fluence  was  exercised,  and  that  the  child  acted  freely  and  with  a 
full  knowledge  of  all  material  facts.39  The  presumption  of  undue 
influence  from  parental  relations  does  not  cease  as  soon  as  the  child 
becomes  of  age.  It  continues  until  there  is  such  a  complete  eman- 
cipation tha^  the  judgment  of  the  child  is  under  no  control.  In 
Bergen  v.  Udall,40  a  daughter,  soon  after  reaching  her  majority, 
made  a  voluntary  conveyance  for  the  benefit  of  her  father.  "A 
transaction  like  the  present,"  said  the  court,  "will  be  examined  by 
the  court  with  the  most  jealous  scrutiny  and  suspicion.  The  per- 
son relying  upon  it  must  show  affirmatively,  not  only  that  the  per- 
son who  made  it  understood  its  nature  and  effect,  and  executed 
it  voluntarily,  but  that  such  will  and  intention  was  not  in  any  de- 
gree the  result  of  misrepresentation  or  mistake,  and  was  not  in- 
duced by  the  exertion,  for  selfish  purposes,  and  for  his  own  ex- 
clusive benefit,  of  the  influence  and  control  which  he  possessed  as 
a  father  over  his  daughter."  41 

It  has  already  been  seen  that  a  parent  may  relinquish  his  right 
to  the  services  of  his  minor  child,  and  that  he  may  bind  himself  by 
an  agreement  to  compensate  the  child  for  his  services.42  Because 
of  the  relationship,  however,  there  is  a  presumption  that  no  com- 
pensation was  intended ;  and  the  child  must  show  affirmatively  that 
there  was  an  agreement  for  compensation.*8  The  same  is  true 

89  Clark,  Cont.  367,  and  cases  there  cited;  Wright  v.  Vanderplank,  8  De 
Gex,  M.  &  G.  133 ;  Archer  v.  Hudson,  7  Beav.  551 ;  Hoghton  v.  Hoghton,  15 
Beav.  278 ;  Savery  v.  King,  5  H.  L.  Cas.  627 ;  Miller  v.  Simonds,  72  Mo.  669 ; 
Bergen  v.  Udall,  31  Barb.  (N.  Y.)  9 ;  Taylor  v.  Taylor,  8  How.  183,  12  L.  Ed. 
1040;  Betz  v.  Lovell,  197  Ala.  239,  72  South.  500;  Cooley  v.  Stringfellow, 
164  Ala.  460,  51  South.  321;  Pevehouse  v.  Adams,  52  Okl.  495,  153  Pac.  65; 
Berkmeyer  v.  Kellerman,  32  Ohio  St.  239,  30  Am.  Rep.  577 ;  Ripple  v.  Kuehne, 
100  Md.  672,  60  Atl.  464 ;  EIGHMY  v.  BROCK,  126  Iowa,  535,  102  N.  W.  444, 
Cooley  Cas.  Persons  and  Domestic  Relations,  206.  But  the  rule  will  not  be 
applied  to  defeat  a  gift  or  contract,  merely  because  of  the  relation.  Giers 
v.  Hudson,  102  Ark.  23~2,  143  S.  W.  916 ;  Turner  v.  Turner,  31  Okl.  272,  121 
Pac.  616. 

4031  Barb.  (N.  Y.)  9. 

41  See,  also,  Williams  v.  Canary,  249  Fed.  344,  161  C.  C.  A.  352,  where  it 
was  said  that,  while  equity  will  closely  scan  a  contract  between  parent  and 
child,  entered  into  shortly  after  the  child  attained  his  majority,  yet  such 
contract  is  not  prima  facie  void,  and  if  not  unconscionable,  and  if  made  with 
complete  understanding  on  the  part  of  the  child,  it  will  not  be  declared  void. 

42  Ante,  p.  358,  and  cases  there  cited.    And  see  Officer  v.  Swindlehurst,  41 
Mont.  126,  108  Pac.  583. 

43  Clark,  Cont.  28,  and  cases  there  cited ;  Bantz  v.  Bantz,  52  Md.  693 ;  Hef- 
fron  v.  Brown,  155  111.  322,  40  N.  E.  583;    Faloon  v.  Mclntyre,  118  111.  292, 
8  N.  E.  315 ;   Miller  v.  Miller,  16  111.  296. 


\ 
390  RIGHTS  OF   PARENTS  AND  OF  CHILDREN  (Ch.  10 

where  a  child  who  has  attained  his  majority  continues  to  live  with 
his  parents,  and  to  render  services  as  during  his  minority.  The 
presumption  is  that  the  services  were  intended  to  be  gratuitous, 
and  the  burden  is  on  the  child  to  show  that  both  parties  intended 
that  compensation  should  be  made.44  A  like  rule  applies  where  a 
parent  seeks  to  recover  as  on  a  contract  with  a  child  for  support 
or  maintenance.*5 

ADVANCEMENTS 

142.  Gifts  of  real  or  personal  property  from  parent  to  child,  in  an- 

ticipation of  the  child's  share  of  the  parent's  estate  under 
statutes  of  distribution,  are  known  as  "advancements." 

143.  The  expenses  of  maintenance  and  education,  and  inconsidera- 

ble gifts,  are  not  advancements ;  but  it  is  prima  facie  other- 
wise with  gifts  made  to  start  a  child  in  business  or  a  pro- 
fession, or  to  make  a  provision  for  him,  and  other  sub- 
stantial gifts. 

When  a  parent  makes  a  gift  to  any  of  his  children,  either  out  of 
his  real  or  his  personal  estate,  in  anticipation  of  the  child's  share 
of  his  estate,  the  gift  is  known  as  an  advancement,  and  will  be 
taken  into  consideration  in  the  distribution  of  the  estate  in  case  of 
intestacy.46  The  doctrine  of  advancement  applies  in  the  case  of 
the  distribution  of  intestate  estates,  under  the  statute  of  distribution 
in  England  (St.  22  &  23  Car.  II.  c.  10), 47  and  under  similar  statute's 
in  the  various  states  of  this  country.48 

Not  every  gift  from  parent  to  child  will  be  considered  as  an  ad- 
vancement. Payments  made  for  the  ordinary  expenses  of  mainte- 
nance and  education  are  not  advancements,  nor  are  gifts  of  money 

44  Ulark,  Cent.  28;  Dye  v.  Kerr,  15  Barb.  (N.  Y.)  444;  Pellage  v.  Pellage, 
32  Wis.  136;  Mosteller's  Appeal,  30  Pa.  473;  Fitch  v.  Peckham,  16  Vt.  150; 
Young  v.  Herman,  97  N.  C.  280,  1  S.  E.  792;  Freeman  v.  Freeman,  65  111. 
106;  Hall  v.  Hall,  44  N.  H.  293. 

46  See  Clark,  Cont.  28. 

4«  Abb.  Desc.  Wills  &  Adm.  10,  138;  4  Kent,  Comm.  417,  418;  Grattan  v. 
Grattan,  18  111.  167,  65  Am.  Dec.  726;  Wallace  v.  Reddick,  119  111.  151,  8  N. 
E.  801 ;  Brunson  v.  Henry,  140  Ind.  455,  39  N.  E.  256 ;  Murphy  v.  Murphy,  95 
Iowa,  271,  63  N.  W.  697. 

47  Edwards  v.  Freeman,  2  P.  Wms.  435;    Walton  v.  Walton,  14  Ves.  318. 

48  Marshall  v.  Rench,  3  Del.  Ch.  239;   Huggins  v.  Huggins,  71  Ga.  66;    Bee- 
be  v.  Estabrook,  79  N.  Y.  246;    Grattan  v.  Grattan,  18  IlL  167,  65  Am.  Dec. 
726. 


§§  142-143)  ADVANCEMENTS  391 

for  current  expenses,  or  inconsiderable  presents.49  But  payments 
made  to  enable  a  child  to  enter  a  profession,  or  to  start  him  in  busi- 
ness, are  prima  facie  deemed  advancements,  such  as  the  admission 
fee  to  one  of  the  inns  of  court,  the  cost  of  a  commission  in  the 
army,  or  the  purchase  of  the  good  will  and  stock  in  trade  of  a 
business.00  And  in  all  other  cases,  when  substantial  payments  of 
money  have  been  made  to  a  child,  or  he  has  received  real  or  per- 
sonal property  of  considerable  value,  the  presumption  is  that  they 
have  been  given  him  by  way  of  advancements.  "If,  in  the  absence 
of  evidence,  you  find  a  father  giving  a  large  sum  in  one  payment, 
there  is  a  presumption  that  that  is  intended  to  start  him  in  life,  or 
make  a  provision  for  him."  61 

The  presumption  that  a  voluntary  conveyance  from  a  parent  to 
a  child  is  intended  as  an  advancement  is  based  on  the  supposition 
that  he  intends  to  treat  his  children  equally ;  and  if  anything  shows 
a  purpose  to  discriminate  between  children,  the  presumption  that 
the  conveyance  is  an  advancement  is  overthrown.62 

<»  Taylor  v.  Taylor,  L.  R.  20  Eq.  155;  Cooner  v.  May,  3  Strob.  Eq.  (S.  C.) 
185 ;  In  re  Riddle's  Estate,  19  Pa.  431 ;  Bradsher  v.  Cannady,  76  N.  C.  445 ; 
Bowles  v.  Winchester,  13  Bush  (Ky-)  1;  Elliot  v.  Collier,  1  Ves.  Sr.  16; 
Sanford  v.  Sanford,  61  Barb.  (N.  Y.)  293 ;  Mitchell's  Distributees  v.  Mitchell's 
Adm'r,  8  Ala.  414;  In  re  King's  Estate,  .6  Whart.  (Pa.)  370;  Meadows  v. 
Meadows,  33  N.  C.  148. 

so  Taylor  v.  Taylor,  L.  R.  20  Eq.  155;  Boyd  v.  Boyd,  L.  R.  4  Eq.  305; 
Bruce  v.  Griscom,  9  Hun  (N.  Y.)  280;  Ison  v.  Ison,  5  Rich.  Eq.  (S.  C.)  15; 
McCaw  v.  Blewit,  2  McCord,  Eq.  (S.  C.)  90 ;  Shiver  v.  Brock,  55  N.  C.  137. 

si  Taylor  v.  Taylor,  L.  R.  20  Eq.  155.  And  see  Sanford  v.  Sanford,  61 
Barb.  (N.  Y.)  293;  Graves  v.  Spedden,  46  Md.  527;  Gordon  v.  Barkelew,  6 
N.  J.  Eq.  94;  Hatch  v.  Straight,  3  Conn.  31,  8  Am.  Dec.  152;  Hodgson  v. 
Macy,  8  Ind.  121 ;  Aylor  v.  Aylor  (Mo.)  186  S.  W.  1068 ;  Cowden  v.  Cowden, 
28  Ohio  Cir.  Ct.  R.  71;  Taylor  v.  Taylor,  4  Gilman  (111.)  303;  Maxwell  v. 
Maxwell,  109  111.  588 ;  Sampson  v.  Sampson,  4  Serg.  &  R.  (Pa.)  329 ;  Watkins 
v.  Young,  31  Grat.  (Va.)  84 ;  Murphy  v.  Murphy,  95  Iowa,  271,  63  N.  W.  697 ; 
Phillips  v.  Phillips,  90  Iowa,  541,  58  N.  W.  879 ;  Roberts  v.  Coleman,  37  W. 
Va.  143,  16  S.  E.  482;  Gulp  v.  Wilson,  133  Ind.  294,  32  N.  E.  928;  New  v. 
New,  127  Ind.  576,  27  N.  E.  154;  Reynolds'  Adm'r  v.  Reynolds,  92  Ky.  556, 
18  S.  W.  517;  McClanahan  v.  McClanahan,  36  W.'Va.  34,  14  S.  E.  419; 
Kemp  v.  Cossart,  47  Ark.  62,  14  S.  W.  465.  Insurance  by  a  father  on  his  life 
'in  the  name  of  a  son  was  held  an  advancement  in  Cazassa  v.  Cazassa,  92 
Tenn.  573,  22  S,  W.  560,  20  L.  R.  A.  178,  36  Am.  St.  Rep.  112.  Of  course,  the 
presumption  may  always  be  rebutted  by  showing  that  a  gift  or  payment  for 
services  was  intended,  or  that  other  consideration  was  given  by  the  child. 
See  Hattersley  v.  Bissett,  51  N.  J.  Eq.  597,  29  Atl.  187,  40  Am.  St.  Rep.  532 ; 
Beakhust  v.  Crumby,  18  R.  I.  689,  30  Atl.  453,  31  Atl.  753 ;  Hall  v.  Hall,  107 
Mo.  101,  17  S.  W.  811;  Groom  v.  Thomson  (Ky.)  16  S.  W.  369,  13  Ky.  Law 
Rep.  223;  Comer  v.  Comer,  119  111.  170,  8  N.  E.  796. 

52  Plowman  v.  Nicholson,  81  Kan.  210,  106  Pac.  279. 


392  BIGHTS  OF  PARENTS  AND  OF  CHILDREN  (Ch.  10 


DUTY  OF  CHILD  TO  SUPPORT  PARENTS 

144.  A  child  is  under  no  legal  obligation  to  support  his  parents,  un- 
less the  duty  is  imposed  by  statute. 

A  child  is  under  no  legal  obligation  at  common  law  to  support 
his  parents,  even  though  they  are  destitute  and  infirm.  There  is 
a  strong  moral  obligation,  but  no  such  duty  is  recognized  by  the 
law,  unless,  as  is  the  case  in  some  jurisdictions,  the  duty  is  ex- 
pressly imposed  by  statute.88  While  they  are  entitled  to  the  child's 
wages  during  its  minority,  the  relation  which  the  child  bears  to 
them  imposes  no  legal  duty  of  maintenance,  and  no  promise  on  the 
part  of  the  child  to  pay  even  for  necessaries  furnished  them  will  be 
implied.84  If  the  children  live  with  their  parents,  the  earnings  of 
all  going  into  a  common  fund  for  the  support  of  the  household, 
and  the  father  has  not  promised  to  repay  the  son  for  any  contribu- 
tion made  to  the  father's  support,  no  implied  promise  arises.85 


DOMICILE  OF  CHILD 

145.  The  child's  domicile  of  origin  is  determined  by  the  domicile 
of  the  father  if  the  child  is  legitimate,  and  by  the  domicile 
of  the  mother  if  illegitimate.  The  child's  domicile  chang- 
es with  the  father's,  or  with  the  mother's,  if  a  widow,  un- 
less she  remarries. 

cs  Duffy  v.  Yordi,  149  Cal.  140,  84  Pac.  838,  4  L.  R.  A.  (N.  S.)  1159,  117 
Am.  St.  Rep.  125,  9  Ann.  Cas.  1017;  Tobin  v.  Bruce,  39  S.  D.  64,  162  N.  W. 
933,  certiorari  denied  Bruce  v.  Tobin,  245  U.  S.  18,  38  Sup.  Ct.  7,  62  L.  Ed. 
123.  Generally,  a  mode  of  enforcing  such  liability  is  prescribed  by  the  stat- 
ute. If  no  mode  is  provided,  one  who  maintains  a  person  within  the  terms 
of  the  statute,  whose  son,  though  able,  neglected  and  refused  to  maintain 
him,  may  recover  therefor  from  the  son.  McCook  County  v.  Kanriioss,  7  S. 
D.  558,  64  N.  W.  1123,  31  L.  R.  A.  461,  58  Am.  St.  Rep.  854 ;  Howe  v.  Hyde, 
88  Mich.  91,  50  N.  W.  i02.  Under  the  Illinois  statute  (Hurd's  Rev.  St.  1908, 
c.  107,  §  1),  requiring  children  to  support  their  infirm  and  indigent  parents,  a 
right  of  action  does  not  accrue  to  the  parent  himself  to  enforce  the  act. 
Schwerdt  v.  Schwerdt,  141  111.  App.  386,  affirmed  235  111.  386,  85  N.  E.  613. 

»*  Rex  v.  Munden,  1  Strange.  190;  Lebanon  v.  Griffin,  45  N.  H.  558;  Ed- 
wards v.  Davis,  16  Johns.  (N.  Y.)  281 ;  Becker  v.  Gibson,  70  Ind.  239 ;  Stone  v. 
Stone,  32  Conn.  142. 

65  Cotter  v.  Cotter,  82  Conn.  331,  73  Atl.  903.  See,  also,  Millis  v.  Thayer, 
139  Wis.  480,  121  N.  W.  124. 


§  145)  DOMICILE  OF  CHILD  393 

The  domicile  of  a  legitimate  child  is  originallv  that  of  its  father, 
and,  where  the  parent  changes  his  domicile,  the  child's  domicile 
changes  with  it.66  The  mother's  domicile  acquired  after  her  hus- 
band's death  determines  that  of  the  child,87  but  the  child's  domicile' 
will  not  follow  the  mother's  in  case  of  her  remarriage,  but  con- 
tinues to  be  the  same  as  it  was  on  the  death  of  the  father.58  An 
infant,  not  being  sui  juris,  cannot  acquire  a  domicile  of  his  own,59 
though,  for  the  purpose  of  obtaining  a  settlement,  a  pauper,  after 
emancipation,  has  been  held  capable  of  acquiring  an  independent 
domicile.60 

56  Somerville  v.  Somerville,  5  Ves.  750;  Sharpe.  v.  Crispin,  L.  R.  1  Prob. 
&  Div.  611 ;  Taylor  v.  Jeter,  33  Ga.  195,  81  Am.  Dec.  302 ;  Daniel  v.  Hill,  52 
Ala.  430.  As  to  domicile  of  an  illegitimate  child,  see  ante,  p.  305.  A  person 
standing  in  loco  parentis  to  a  child  may  change  its  domicile.  In  re  Vance,  92 
Cal.  195,  28  Pac.  229;  Cox  v.  Boyce,  152  Mo.  576,  54  S.  W.  467,  75  Am.  St. 
Rep.  483. 

5  7  Potinger  v.  Wightman,  3  Mer.  67 ;  Johnstone  v.  Beattie,  10  Clark.  &  F. 
42;  LAMAR  v.  MICOU,  112  U.  S.  452,  470,  5  Sup.  Ct.  221,  28  L.  Ed.  751, 
Cooley  Gas.  Persons  and  Domestic  Relations,  230;  Ryall  v.  Kennedy,  40  N. 
Y.  Super.  Ct.  347 ;  Carlisle  v.  Tuttle,  30  Ala.  613. 

sscumner  Parish  v.  Milton  Parish,  3  Salk.  259;  Potinger  v.  Wightman, 
3  Mer.  67 ;  LAMAR  v.  MICOU,  112  U.  S.  452,  5  Sup.  Ct.  221,  28  L.  Ed.  751, 
Cooley  Gas.  Persons  and  Domestic  Relations,  230;  Brown  v.  Lynch,  2  Bradf. 
Sur.  (N.  Y.)  214;  Johnson  v.  Copeland's  Adm'r,  35  Ala.  521;  Inhabitants  of 
Freetown  v.  Inhabitants  of  Taunton,  16  Mass.  52. 

69  Somerville  v.  Somerville,  5  Ves.  750;  Brown  v.  Lynch,  2  Bradf.  Sur.  (N. 
Y.)  214;  Lacy  v.  Williams,  27  Mo.  280;  Taylor  v.  Jeter,  33  Ga.  195,  81  Am. 
Dec.  302. 

eo  Inhabitants  of  Charlestown  v.  Inhabitants  of  Boston,  13  Mass.  469;  Over- 
seers of  Washington  Tp.  v.  Overseers  of  Beaver  Tp.,  3  Watts  &  S.  (Pa.)  548 ; 
Inhabitants  of  Dennysville  v.  Inhabitants  of  Trescott,  30  Me.  470. 

>\ 


PART  III 
GUARDIAN  AND  WARD 

CHAPTER  XI 

GUARDIANS   DEFINED— SELECTION  AND   APPOINTMENT 

146-147.  In  General. 

148.  Natural  Guardians. 

149.  Guardians  in  Socage. 

150.  Testamentary  Guardians. 

151.  Chancery   Guardians. 

152.  Statute  Guardians. 

153.  Quasi  Guardians,  or  Guardians  by  Estoppel. 

154.  Guardians  of  Persons  Non  Compotes  Mentis. 

155.  Guardians  Ad  Litem. 

156-158.     Selection   and   Appointment   of   Guardians   by   Court. 
159.    Jurisdiction   to  Appoint   Guardian. 

IN  GENERAL 

146.  A  guardian  is  one  to  whom  the  law  intrusts  the  persons  or 

estates,  or  both,  of  those  who,  by  reason  of  their  infancy 
or  of  mental  infirmities,  are  not  sui  juris.  Persons  under 
guardianship  are  called  "wards." 

147.  The  various  kinds  of  guardians  are 

(a)  Natural  guardians. 

(b)  Guardians  in  socage. 

(c)  Testamentary  guardians. 

(d)  Chancery  guardians. 

(e)  Statute  guardians. 

(f)  Quasi  guardians  or  guardians  by  estoppel. 

(g)  Guardians  of  persons  non  compotes  mentis  or  spendthrifts, 
(h)  Guardians  ad  litem. 

Guardianship  is  a  trust  which  is  dual  in  its  nature,  involving 
two  distinct  and  separate  functions — the  control  of  the  person  of 
the  ward,  and  the  management  of  his  estate.1  Guardians  are  there- 

i  United  States  v.  Hall  (D.  C.)  171  Fed.  214. 

(394) 


§  148)  NATURAL   GUARDIANS  395 

fore  divided  into  two  classes — guardians  of  the  person,  called  in 
the  civil  law  "tutors,"  and  guardians  of  the  estate,  called  in  the 
civil  law  "curators."  These  civil-law  terms  are  in  use  in  Louisi- 
ana.2 A  guardian  of  the  person  is  one  who  is  lawfully  invested 
with  the  care  of  the  person  of  the  ward.  A  guardian  of  the  estate 
is  one  who  has  been  lawfully  invested  with  the  power  of  taking 
care  of  and  managing  the  estate  of  an  infant.  Guardians  may  also 
be  divided  as  stated  in  the  black-letter  text.  Some  of  them  have 
charge  of  the  person  of  the  ward  only,  while  others  have  charge 
of  his  estate  only,  and  others  have  charge  both  of  the  person  and 
estate.  A  guardian  ad  litem  is  a  guardian  merely  for  the  purpose  of 
a  suit. 

NATURAL  GUARDIANS 

148.  The  father,  or,  if  he  is  dead,  the  mother,  or,  if  both  are  dead, 
the  next  of  kin  is  the  natural  guardian  of  a  child.  A 
natural  guardian  is  a  guardian  of  the  ward's  person  only. 

At  common  law  there  was  what  was  known  as  a  "guardian  by 
nature."  This  guardianship  related  only  to  the  person  of  the  heir 
apparent,  and  vested  first  in  the  father,  and  then  in  the  mother.  It 
is  now  obsolete.3  There  was  also  a  guardianship  for  nurture,  which 
related  to  the  person,  but  applied  only  to  the  younger  children.4 
These  two  forms  of  guardianship  are  now  replaced  by  the  natural 
guardianship  of  the  parent,  or  next  of  kin,  if  the  parents  are  dead. 
The  father  is  entitled  to  the  custody  of  his  own  children  during 
their  infancy,  not  only  as  guardian  by  nurture,  but  by  nature.5 
On  the  death  of  the  father,  guardianship  by  nature  passes  to  the 
mother,  and,  on  her  death,  to  the  grandfather  or  grandmother  or 
any  other  person  who  is  next  of  kin.6  Prima  facie,  the  natural 

2  The  term  "curator"  is  also  used  in  some  other  states.  The  term  sig- 
nifies one  who  has  charge  only  of  the  property  or  estate  of  the  ward,  aa 
distinguished  from  "guardian,"  who  has  charge  only  of  the  person,  or  both 
the  person  and  estate.  Burger  v.  Frakes,  67  Iowa,  460,  23  N.  W.  746,  25  N. 
W.  735. 

sMaeph.   Inf.  57;    2  Kent,  Corum.  221. 

4Macph.  Inf.   60;    2  Kent,  Comm.  221. 

5  Ex  parte  Hopkins,  3  P.  Wins.  152 ;  In  re  Galleher,  2  Cal.  App.  364,  84 
Pac.  352;  Ringstad  v.  Hanson,  150  Iowa,  324,  130  N.  W.  145;  In  re  Knott, 
162  Mich.  10,  126  N.  W.  1040 ;  In  re  Wright,  79  Neb.  10,  112  N.  W.  311. 

«  Harg.  Co.  Litt.  SSb,  note  12 ;  Laruar  v.  Micou,  114  U.  S.  218,  5  Sup.  Ct. 
857,  29  L.  Ed.  94;  Holmes  v.  Derrig,  127  Iowa,  625,  103  N.  W.  973;  In  re 
Benton,  92  Iowa,  202,  60  N.  W.  614,  54  Am.  St.  Rep.  546;  Smith  v.  Young,  136 


396  GUARDIANS  DEFINED SELECTION  AND  APPOINTMENT      (Ch.  11 

guardian  is  entitled  to  the  custody  of  the  child;  but  there  are  ex- 
ceptions to  the  rule,  resulting  from  the  doctrine  that  the  child's 
welfare  must  be  considered  in  awarding  his  custody.  This  ques- 
tion has  been  fully  explained  in  treating  of  the  relation  of  parent 
and  child.7  The  natural  guardian  of  a  child  has  control  of  his 
person  only.  He  has  no  authority  or  responsibility,  as  such,  in 
regard  to  the  child's  property.8 


GUARDIANS  IN  SOCAGE 

149,  Guardianship  in  socage  was  where  an  infant  acquired  by  de- 
scent land  held  in  socage.  The  next  of  kin  who  could  not 
possibly  inherit  became  guardian  and  had  authority  over 
the  person  of  the  infant  as  well  as  the  land,  and  over 
personal  property  connected  with  it,  but  not  over  other 
personalty.  On  reaching  the  age  of  14,  the  infant  could 
elect  his  own  guardian,  and  terminate  the  guardianship. 
This  kind  of  guardianship  is  obsolete  at  common  law,  but 
there  is  a  similar  guardianship  by  statute  in  some  juris- 
dictions. 

"At  the  common  law,  if  lands  held  in  socage  came  to  an  infant 
by  descent,  his  nearest  relative  who  could  not  by  any  possibility 
inherit  the  lands  was  his  guardian  in  socage  until  the  age  of  four- 
teen, and  until  the  infant  selected  a  guardian  for  himself.  Such 
guardian  might  lawfully  receive  the  rents  and  profits  of  the  land 
during  the  continuance  of  the  guardianship.  If  the  lands  descend- 
ed from  the  father  or  other  paternal  relatives,  the  mother,  or  next 
of  kin  on  the  part  of  the  mother,  was  the  guardian;  and,  if  the 
lands  descended  on  the  part  of  the  mother,  the  father,  or  next  of 

Mo.  App.  65,  117  S.  W.  628 ;  Darden  v.  Wyatt,  15  Ga.  414.  In  the  Philippine 
Islands  the  wife  is  natural  guardian  of  her  children  on  death  of  husband,  but 
this  terminates  upon  her  remarriage.  Palet  v.  Aldecoa  Co.,  15  Phil.  Rep.  232. 

7  Ante,  p.  343. 

82  Kent,  Comm.  220;  Williams  v.  Cleaveland,  76  Conn.  426,  56  Atl.  850; 
Hyde  v.  Stone,  7  Wend.  (N.  Y.)  354,  22  Am.  Dec.  582;  Kline  v.  Beebe,  6 
Conn.  494 ;  Perry  v.  Carmichael,  95  111.  519 ;  Kendall  v.  Miller,  9  Cal.  591 ; 
Otto  v.  Schlapkahl,  57  Iowa,  226,  10  N.  W.  651;  Ringstad  v.  Hanson,  150 
Iowa,  324,  130  N.  W.  145 ;  Vineyard  v.  Heard  (Tex.  Civ.  App.)  167  S.  W.  22 ; 
Alston  v.  Alston,  34  Ala.  15 ;  Linton  v.  Walker,  8  Fla.  144,  71  Am.  Dec.  105 ; 
May  v.  Calder,  2  Mass.  55;  Miles  v.  Boyden,  3  Pick.  (Mass.)  213;  Johnson's 
Adm'r  v.  Johnson's  Ex'r,  2  Hill,  Eq.  (S.  C.)  280,  29  Am.  Dec.  72;  ante,  p.  386; 
Palet  v.  Aldecoa  Co.,  15  Phil.  Rep.  232.  But  in  Louisiana  the  natural  tutrix 


§  149)  GUARDIANS  IN   SOCAGE  397 

kin  on  the  paternal  side,  was  entitled  to  the  guardianship."  9  It 
has  been  held  that  there  could  be  no  guardianship  in  socage  where 
the  infant  acquired  the  lands  by  purchase,  and  not  by  descent.10 
To  insure  the  safety  of  the  ward,  the  guardianship  was  given  by 
the  law  to  the  next  of  kin  who  could  not  possibly  inherit  the  lands, 
for  the  guardianship  extended  over  the  person  of  the  ward  as  well 
as  the  land.11  On  reaching  the  age  of  14  the  infant  could  terminate 
the  guardianship,  and  elect  his  own  guardian.12  Guardianship  in 
socage,  as  stated  above,  extended  over  the  person  of  the  ward,  as 
well  as  over  the  real  estate; 1S  and  it  extended  over  personalty  con- 
nected with  the  real  estate,  but  not  over  choses  in  action  and  other 
personal  property.14 

Guardianship  in  socage  was  an  incident  of  the  feudal  system  ex- 
isting in  England  under  the  common  law  of  real  property.  It  has 
fallen  into  disuse  there,  and  it  was  never  common  in  this  country. 
In  New  York,  and  perhaps  in  other  states,  there  is  a  somewhat 
similar  guardianship  known  as  "guardianship  in  socage."  The  Re- 
vised Statutes  of  New  York  provide :  "Where  an  estate  in  lands 
shall  become  vested  in  an  infant,  the  guardianship  of  such  infant, 
with  the  rights,  duties,  and  powers  of  a  guardian  in  socage,  shall 
belong  (1)  to  the  father  of  the  infant;  (2)  if  there  be  no  father,  to 
the  mother;  (3)  if  there  be  no  father  or  mother,  to  the  nearest  and 
eldest  relative  of  full  age,  not  being  under  any  legal  incapacity,  and, 
as  between  relatives  of  the  same  degree  of  consanguinity,  male  shall 
be  preferred."  1B  The  guardianship  thus  created  is  like  the  guard- 
ianship in  socage  at  common  law,  except  that  it  continues  until 
the  infant  reaches  the  age  of  21 ;  and  relatives  who  can  inherit  from 
the  infant  are  not  excluded,  and  it  makes  no  difference  how  the 

land  was  acquired.16 

i 

may  take  possession  of  property  and  convert  it  for  the  ward's  benefit.  Hog- 
gatt  v.  Morancy,  10  La.  Ann.  169. 

»  Combs  v.  Jackson,  2  Wend.  (N.  Y.)  153,  19  Am.  Dec.  568.  See  1  Bl.  Comm. 
461;  2  Kent,  Cornm.  221. 

10  Combs  v.  Jackson,  2  Wend.  (N.  Y.)  153,  19  Am.  Dec.  568;    Quadring  v. 
Downs,  2  Mod.  176. 

11  Co.  Litt.  §  123;   2  Kent,  Comm.  222;   Fonda  v.  Van  Home,  15  Wend.  (X. 
Y.)  631,  30  Am.  Dec.  77. 

12  Co.  Litt  §  123. 

is  Co.  Litt.  §  123;   Com.  Dig.  -'Guardian,"  B;   2  Kent,  Comm.  221. 
i4Foley,v.  Mutual  Life  Ins.  Co.,  138  N.  Y.  333,  34,  N.  E.  211,  20  L.  R.  A. 
620,  34  Am.  St.  Rep.  456. 

154  Rev.  St  N.  Y.  (8th  Ed.)  pt.  2,  c.  1,  tit.  1,  art.  1,  §  5. 

i«  Foley  v.  Mutual  Life  Ins.  Co.,  138  N.  Y.  333,  34  N.  E.  211,  20  L,  R,  A. 


398  GUARDIANS  DEFINED SELECTION  AND  APPOINTMENT     (Ch.  11 


TESTAMENTARY  GUARDIANS 

150.  By  statute,  a  father,  and  in  some  states  a  mother,  on  his  death, 
may,  generally  by  will,  and  in  some  states  by  deed,  appoint 
a  guardian  for  a  minor  child.  Such  a  guardianship  extends 
to  the  person,  and  to  the  real  and  personal  property,  of  the 
ward,  and  continues  until  the  ward's  majority. 

Testamentary  guardianship  was  created  by  the  statute  of  12  Car. 
II.  c.  24,  the  provisions  of  which  have  been  substantially  enacted  in 
many  of  the  states  in  this  country.  It  was  provided  by  that  statute 
that  the  father  of  minor  children  could  "by  deed  executed  in  his  life- 
time, or  by  his  last  will  and  testament  in  writing,"  dispose  of  their 
custody  and  tuition.  Under  this  statute,  the  father  alone  could  ap- 
point,17 and  he  could  do  so  though  himself  a  minor.  In  this  coun- 
try the  statutes  of  the  different  states  contain  various,  but  not  uni- 
form, changes.18  In  some  states  the  appointment  can  only  be  made 
by  will,  and  in  some  the  mother,  after  the  death  of  the  father,  suc- 
ceeds to  his  power,  if  she  is  unmarried.19  It  is  sufficient  for  the 
appointment  of  a  testamentary  guardian  that  the  intention  to  ap- 
point is  clear,  although  there  is  no  express  designation  as  such  in 
the  will,  provided  that  the  powers  essential  to  the  office  are  con- 
ferred.20 The  authority  is  derived  from  the  appointment,  and  re- 
quires no  confirmation  by  the  court,21  nor  even  by  the  probate  of 

620,  34  Am.  St.  Rep.  456 ;  Fonda  v.  Van  Home,  15  Wend.  (N.  Y.)  631,  30  Ain. 
Dec.  77.  See,  also,  In  re  Wagner,  75  Misc.  Rep.  419,  135  N.  Y.  Supp.  678. 

IT  See,  also,  the  Florida  statute  (Rev.  St. -1892,  §  20S6) ;  Hernandez  v. 
Thomas,  50  Fla.  522,  39  South.  641,  2  L.  R.  A/  (N.  S.)  203,  111  Am.  St.  Rep. 
137,  7  Ann.  Gas.  446. 

i  s  in  re  Kellogg,  110  App.  Dlv.  472,  96  N.  Y.  Supp.  965 ;  Blacksher  v. 
Northmp,  176  Ala.  190,  57  South.  743,  42  L.  R.  A.  (N.  S.)  454 ;  In  re  Allen's 
Estate,  162  Cal.  625,  124  Pac.  237;  Ingalls  v.  Campbell.  18  Or.  461,  24  Pac. 
904.  Testamentary  guardianship  is  not  authorized  in  Iowa.  In  re  O'Con- 
nell's  Guardianship,  102  Iowa,  355,  71  N.  W.  211. 

i»  In  re  Kellogg,  110  App.  Div.  472,  96  N.  Y.  Supp.  965;  In  re  Waring's 
Will,  46  Misc.  Rep.  222,  94  N.  Y.  Supp.  82.  Father  cannot  appoint  guardian 
by  will  if  mother  is  living.  Campbell  v.  Mansfield,  104  Miss.  533,  61  South. 
593.  45  L.  R.  A.  (N.  S.)  446.  Necessity  of  mother's  consent.  In  re  Snow- 
ball's Estate,  156  Cal.  240,  104  Pac.  444. 

20  Bridges  v.  Hales,  Mos.  10S;  Miller  v.  Harris,  14  Sim.  540;  Corrigan  v. 
Kiernan,  1  Bradf.  Sur.  (N.  Y.)  208;  Southern  Marble  Co.  v.  Stegall,  90  Ga. 
236,  15  S.  E.  806 ;  In  re  Hawley,  104  N.  Y.  250,  10  N.  E.  352 ;  Balch  v.  Smith, 
12  N.  H.  437. 

siNorris  v.  Harris,  15  Cal.  226;  Southern  Marble  Co.  v.  Stegall,  90  Ga. 
236,  15  S.  E.  806. 


§  151)  CHANCERY   GUARDIANS  399 

the  will;  *2  and,  when  such  power  has  been  exercised  by  the  testa- 
tor, the  court  has  no  jurisdiction  to  appoint  a  different  guardian.28 
By  statute,  such  appointment  is  sometimes  made  subject  to  the  pro- 
bate of  the  will,  and  also  the  approval  of  the  court  and  the  giving  of 
a  bond.  The  office  is  one  of  personal  trust,  and  is  not  assignable.24 
Testamentary  guardianship  extends  to  the  person,  and  to  the  real 
and  personal  estate,  of  the  child,  and  it  continues  until  the  ward  ar- 
rives at  full  age.25  The  statute  of  Charles  II.  does  not  confer  upon 
the  father  power  to  appoint  a  guardian  for  his  illegitimate  child, 
nor  can  he  delegate  any  such  power  to  a  third  person.26  It  is  the 
practice  of  the  courts  to  adopt  the  nomination  of  a  guardian  by  a 
putative  father  of  a  natural  child,  in  cases  where  he  has  left  an  es- 
tate, and  the  person  nominated  is  in  all  respects  proper;  but  this 
is  simply  in  deference  to  the  wishes  of  the  deceased,  and  not  as  a 
matter  of  right  which  the  court  is  bound  to  respect.27 

In  Texas,  it  has  been  held  that  the  statutes  of  that  state  provid- 
ing for  the  continuance  in  office  of  a  guardian,  and  for  the  appoint- 
ment of  his  successor,  exclude  the  idea  of  another  being  appointed 
to  succeed  him  before  his  removal ;  and,  therefore,  that  a  person  ap- 
pointed, by  the  will  of  a  father  (or,  as  in  this  case,  a  mother),  guard- 
ian of  the  estate  of  a  minor  child,  is  not  entitled  to  letters  of  guardi- 
anship while  another  guardian,  appointed  at  the  father's  request  in 
his  lifetime,  is  qualified  to  act.28 


CHANCERY  GUARDIANS 

151.  Courts  of  chancery,  in  the  absence  of  statutory  limitations, 
have  jurisdiction  to  appoint  guardians  of  the  persons  and 
estates  of  infants. 

22  Gilliat  v.  Gilliat,  3  Phillim.  Ecc.  222. 

23  Copp  v.  Copp,  20  N.  H.  284 ;    Robinson  v.  Zollinger,  9  Watts  (Pa.)  169. 

24  Eyre  v.  Countess  of  Shaftsbury,  2  P.  Wms.  102;    In  re  Moore,  11  Ir. 
Com.  Law,  1 ;   Balch  v.  Smith,  12  N.  H.  437. 

25  in  re  Sheetz's  Estate,  6  Pa.  Dist.  R.  367.    See,  also,  In  re  Grimes'  Ea. 
tate,  79  Mo.  App.  274;   In  re  Kellogg,  110  App.  Div.  472,  96  N.  T.  Supp.  965. 
But  see  Churchill  v.  Jackson,  132  Ga.  666,  64  S.  E.  691,  49  L.  R.  A.  (N.  S.) 
875,  Ann.  Oas.  1913E,  1203,  where  appointment  was  limited  to  care  of  estate. 

26  Ramsay  v.  Thompson,  71  Md.  315,  18  Atl.  592,  6  L.  R.  A.  705,  and  cases 
there  cited. 

27  Ramsay  v.  Thompson,  71  Md.  315,  18  Atl.  592,  6  L.  R.  A.  705. 

28  Potts  T.  Terry,  8  Tex.  Civ.  App.  394,  28  S.  W.  122. 


400  GUARDIANS  DEFINED SELECTION  AND  APPOINTMENT     (Ch.  11 

Chancery  guardians  are  appointed  by  the  court  of  chancery,  and 
in  England  constitute  the  most  important  class  of  guardians.  The 
jurisdiction  of  chancery  over  infants  is  of  very  ancient  date.  Its 
origin  is  traced  to  the  delegation  by  the  crown  of  its  duty  to  protect 
the  helpless,  as  parens  patriae.29  The  court  of  chancery  will  not 
exercise  its  jurisdiction  unless  the  infant  has  property,80  but  this  is 
often  obviated  by  the  settlement  of  a  small  amount  on  the  child.31 
The  appointment  may  be  made  when  the  child  has  no  other  guard- 
ian, when  a  suit  is  pending  in  which  it  is  interested,  or  upon  petition 
without  suit.82  In  this  country,  courts  of  equity  often  retain  a  gen- 
eral jurisdiction  over  the  persons  and  estates  of  infants,88  though, 
as  a  rule,  the  matter  of  guardianship  is  exclusively  delegated  by 
statute  to  the  probate  court  or  other  similar  tribunal.3* 


STATUTE  GUARDIANS 

152.  Guardians  of  the  persons  and  estates  of  infants  are  generally 
appointed  in,  this  country  by  courts  of  special  statutory 
jurisdiction.  They  are  known  as  "statute  guardians." 

The  probate,  surrogate's,  orphans',  ordinary's,  or  other  similar 
court  generally  has,  in  the  various  states  of  this  country,  full  statu- 
tory jurisdiction  over  the  persons  and  estates  of  minors,  and  over 
their  guardianship.  Guardians  appointed  by  these  courts  are  now 
generally  designated  as  "statute  guardians,"  and  form,  in  this  coun- 
try, to-day  by  far  the  most  important  class.  Their  selection  and  ap- 
pointment, and  their  powers,  duties,  and  obligations,  are  determin- 
ed in  detail  to  a  greater  or  less  degree  by  statute.85  In  the  absence 

2» 2  Fonbl.  Eq.  (5tli  Ed.)  228,  note;  2  Story,  Eq.  Jur.  §  1333;  Butler  v. 
Freeman,  Amb.  301. 

30  Wellesley  v.  Duke  of  Beaufort,  2  Russ.  1,  20. 

si  Eversley,  Dom.  Rel.  655. 

32  Eversley,  Dom.  Rel.  655. 

SB  Pom.  Eq.  Jur.  §  78 ;  People  v.  Wilcox,  22  Barb.  (N.  T.)  178 ;  Board  of 
Children's  Guardians  of  Marion  County  v.  Shutter,  139  Ind.  268,  34  N.  E. 
665,  31  L.  R.  A.  740;  Thomas  v.  Thomas,  250  111.  354,  95  N.  E.  345,  35  I*  R.  A. 
(X.  S.)  1158,  Ann.  Cas.  -1912B,  344,  reversing  155  111.  App.  619. 

34  Brack  v.  Morris,  90  Kan.  64,  132  Pac.  11S5 ;    State  ex  rel.  Baker  v.  Bird, 
253  Mo.  569,  162  S.  W.  119,  Ann.  Cas.  1915C,  353 ;    Parker  v.  Lewis,  45  Okl. 
807,  147  Pac.  310. 

35  Guardians  and  curators  are  creatures  of  the  law  and  statutory  officers 
of  the  court.    They  have  no  inherent  powers,  but  only  such  as  are  prescribed 
by  statute.     Scott  v.  Royston,  223  Mo.  568,  123  S.  W.  454. 


§    153)  QUASI  GUARDIANS,  OR   GUARDIANS   BY   ESTOPPEL  401 

of  statutory  regulations,  the  ordinary  principles  of  law  governing 
the  relations  of  guardian  and  ward  apply.  When  an  infant  is  sole 
executor,  or  is  the  next  of  kin  to  whom  letters  of  administration 
ought  to  be  granted,  the  Probate  Division  of  the  High  Court  of 
Justice  in  England  will  appoint  a  probate  guardian  to  act  durante 
minore  jetate,  for  the  purpose  of  administering  the  estate.88  In  this 
country  the  courts  generally  have  statutory  powers  to  select  an  ad- 
ministrator to  act  in  the  infant's  place  during  his  minority. 

QUASI  GUARDIANS,  OR  GUARDIANS  BY  ESTOPPEL 

153.  Where  one  who  has  no  right  to  do  so  assumes  to  act  as  guard- 
ian, he  may  be  made  to  account  as  guardian. 

When  one  who  has  not  been  regularly  appointed  a  guardian  as- 
sumes to  act  as  such,  or,  by  intermeddling,  has  taken  possession  of 
an  infant's  estate,  he  may,  at  the  election  of  the  infant,  be  treated  as 
a  wrongdoer  or  as  a  guardian.37  "A  mere  stranger  or  wrongdoer, 
who  takes  possession  of  the  property  of  an  infant,  and  receives  the 
rents  and  profits  thereof,  may,  in  equity,  be  considered  as  the  guard- 
ian of  the  infant,  and  may  be  compelled  to  account  as  such." 88 
And,  also,  when  a  regular  guardian  continues  to  manage  the  ward's 
property  after  the  latter's  majority,  and  in  effect  continues  the 
guardianship,  he  may  be  made  to  account  according  to  the  rules 
pertaining  as  between  a  regular  guardian  and  his  ward.39  Ordi- 
narily, however,  on  the  termination  of  the  guardianship,  the  rela- 
tion changes  from  that  of  guardian  and  ward  to  that  of  debtor  and 
creditor.40 

as  Eversley,  Dom.  Rel.  653 ;    1  Williams,  Ex'rs,  480. 

37  Revett  v.  Harvey,  1  Sim.  &  S.  502;  Wall  v.  Stanwick,  34  Ch.  Div.  763; 
Blomfield  v.  Eyre,  8  Beav.  250;  Zeideman  v.  Molasky,  118  Mo.  App.  106,  94 
S.  W.  754;  Van  Epps  v.  Van  Deusen,  4  Paige  (N.  Y.)  64,  25  Am.  Dec.  516; 
Sherman  v.  Ballou,  8  Cow.  (N.  Y.)  304;  Pennington  v.  L'Hommedieu,  7  N. 
J.  Eq.  343 ;  Alston  v.  Alston,  34  Ala.  15 ;  In  re  Harris'  Guardianship,  17  Ariz. 
405,  153  Pac.  422 ;  Smith's  Appeal,  158  Mich.  174,  122  N.  W.  564 ;  Crooks  v. 
Tnrpen,  1  B.  Mon.  (Ky.)  183;  Lehmann  v.  Rothbarth,  111  111.  185;  Martin's 
Adm'r  v.  Fielder,  82  Va.  455,  4  S.  E.  602.  There  is  no  such  thing  as  a 
guardian  de  facto.  Bell  v.  Love,  72  Ga.  125. 

88  Van  Epps  v.  Van  Deusen,  4  Paige  (N.  Y.)  64,  25  Am.  Dec.  516;  Ander- 
son's Adm'r  v.  Smith,  102  Va.  697,  48  S.  E.  29. 

s»  Mellish  v.  Mellish,  1  Sim.  &  S.  138. 

40  Crow  ell's  Appeal,  2  Watts  (Pa.)  295;  Cunningham  v.  Cunningham,  4 
Grat.  (Va.)  43. 

TIFF.P.&  D.REL.(3o  ED.)— 26 


402  GUARDIANS   DEFINED SELECTION  AND  APPOINTMENT      (Ch.  11 


GUARDIANS  OF  PERSONS  NON  COMPOTES  MENTIS 

154.  Generally,  by  statute,  the  probate  or  some  similar  court  is  giv- 

en the  power  to  appoint  a  guardian  of  the  person  and  es- 
tate of  persons  who  are  non  compotes  mentis.  In  some 
states  the  power  is  extended  to  include  spendthrifts. 

The  crown,  as  parens  patriae,  had  authority  over  the  care  and  cus- 
tody of  infants ;  but  this  authority  did  not  originally  extend  to  in- 
sane persons  and  other  persons  non  compotes  mentis.  It  was,  how- 
ever, conferred  on  the  crown  by  Parliament,  and  intrusted  under 
the  sovereign's  sign  manual  to  the  Lord  Chancellor.  In  this  country 
the  guardianship  of  persons  who  are  non  compotes  mentis  is  wholly 
regulated  by  statute  in  the  different  states,  jurisdiction  being  gen- 
erally conferred  upon  the  probate  or  other  similar  court.  Guardian- 
ship over  spendthrifts  was  unknown  at  common  law,  but  is  not 
uncommon  under  statutes  in  this  country.41  Guardianship  of  per- 
sons non  compotes  mentis  is  governed  by  substantially  the  same 
principles  and  rules  of  law  as  the  guardianship  of  infants. 

GUARDIANS  AD  LITEM 

155.  A  guardian  ad  litem  is  a  guardian  appointed  by  a  court  of  jus- 

tice to  prosecute  or  defend  for  an  infant  in  a  suit  to  which 
he  is  a  party. 

Every  court  in  which  suit  is  brought  against  an  infant  has  the 
power  to  appoint  a  person  to  defend  for  him,  when  he  has  no  guard- 
ian; for,  as  an  infant  cannot  appoint  an  attorney,  he  would  other- 
wise be  without  assistance.  A  person  so  appointed  is  called  a 
"guardian  ad  litem."  His  power  and  duties,  as  the  term  implies, 
are  limited  to  the  defense  of  the  suit.*2  A  guardian  ad  litem  may 
also  be  appointed  to  sue  for  an  infant,  but  this  is  not  usual,  as  an 
infant  generally  sues  by  next  friend.48  The  appointment  of^  a 
guardian  ad  litem  will  be  considered  when  we  come  to  treat  of  in- 
fants, and  of  actions  by  and  against  them. 

«i  Post,  p.  535. 

«»  Co.  Litt  88b ;    Bouv.  Law  Diet.  "Guardian" ;   post,  p.  468. 

«»  Post,  p.  408. 


§§  156-158)        SELECTION   AND  APPOINTMENT  BY   COURT  403 

SELECTION  AND  APPOINTMENT  OF  GUARDIANS  BY 

COURT 

156.  The  selection  of  a  guardian  by  the  court  is  discretionary.    The 

father,  or,  in  this  country,  the  mother  if  he  is  dead,  or,  if 
both  are  dead,  one  of  the  next  of  kin,  will  be  appointed,  un- 
less he  is  unfit,  or  the  interests  of  the  child  demand  the  ap- 
pointment of  some  one  else. 

157.  A  child  over  14  could  select  his  own  guardian  for  nurture  or 

in  socage,  at  common  law,  and  may  select  'his  statute 
guardian  in  this  country,  if  the  person  selected  is  suitable. 

158.  But  the  court  will  not  appoint  as  guardian, 

(a)  In  England,  a  married  woman,  though  in  this  country  the 

marriage  of  a  woman  is  generally  not  regarded  as  a  dis- 
qualification. 

(b)  Nonresidents,  as  a  rule,  though  it  has  the  power  to  do  so. 

(c)  Persons  whose  interests  may  be  adverse  to  those  of  the  ward. 

In  the  selection  of  a  guardian,  the  court  has  a  liberal,44  but  not 
arbitrary,*8  discretion.  It  will  generally  respect  the  natural  claim 
of  the  father  to  act  as  guardian  of  his  child.48  An  appointment, 
though  too  informal  to  be  good  as  a  testamentary  appointment,  has 
great  weight  with  the  court  in  the  selection  of  a  guardian.47  And, 
generally,  the  wishes  of  a  deceased  parent  will  prevail,  in  the  ab- 

**  In  re  Kaye,  1  Ch.  App.  387;  Ohms  v.  Woodward,  134  Mich.  596,  96  N. 
W.  950 ;  Nelson  v.  Green,  22  Ark.  367 ;  State  v.  Houston,  32  La.  Ann.  1305 ; 
Battle  v.  Vick,  15  N.  C.  294 ;  In  re  Johnson,  87  Iowa,  130,  54  N.  W.  69 ;  Craw- 
ford v.  Crawford,  91  Iowa,  744,  60  N.  W.  501. 

45  White  v.  Pomeroy,  7  Barb.   (N.  Y.)  640. 

4«  In  re  Forrester,  162  Cal.  493,  123  Pac.  283 ;  Andrino  v.  Tates,  12  Idaho, 
618,  87  Pac.  787 ;  In  re  Alexander,  127  La.  853,  54  South.  125 ;  In  re  TULLY, 
54  Misc.  Rep.  184,  105  N.  Y.  Supp.  858,  Cooley  Cas.  Persons  and  Domestic 
Relations,  210;  In  re  Galleher,  2  Cal.  App.  364,  84  Pac.  352.  Under  Domestic 
Relations  Law  (Laws  1896,  p.  223,  c.  272)  §  51,  vesting  in  the  mother  a  right 
to  the  custody  of  a  child  equally  with  the  father,  a  guardian  cannot  be  ap- 
pointed for  a  minor  on  the  father's  petition  without  notice  to  the  mother. 
In  re  Drowne's  Estate,  56  Misc.  Rep.  417,  107  N.  Y.  Supp.  1029. 

47  Hall  v.  Stork,  5  Law  J.  Exch.  97 ;  In  re  Kaye,  1  Ch.  App.  387 ;  In  re  De 
Marcellin,  24  Hun  (N.  Y.)  207;  State  ex  rel.  Young  v.  Cook,  193  Mo.  App. 
276,  183  S.  W.  365.  And  see  Knott  v.  Cottee,  2  Phil.  Ch.  192,  where  a  recom- 
mendation in  a  will  as  to  the  custody  of  a  child  was  followed.  But  the  at- 
tempted designation  by  will  does  not  give  the  person  so  named  any  right  of 
priority.  In  re  Allen's  Estate,  162  Cal.  625,  124  Pac.  237. 


404  GUARDIANS  DEFINED— SELECTION  AND  APPOINTMENT      (Ch.  11 

sence  of  good  reasons  to  the  contrary.48  The  best  interests  of  the 
infant  will  prevail,  however,  against  even  the  claim  of  a  father, 
when  he  is  not  a  suitable  person.49  In  this  country,  particularly, 
the  benefit  of  the  ward  is  the  paramount  consideration  with  the 
court;  and  some  third  person  is  often  appointed,  not  only  when 
the  father  is  unfit,  but  solely  out  of  consideration  for  the  general 
welfare  of  the  child.80  If  the  father  is  not  living,  the  mother,  in 
this  country,  will  generally  be  appointed,  unless  there  is  some  good 
reason  why  she  should  not.51  If  the  child  is  an  orphan,  the  prefer- 
ence will  be  given  to  the  next  of  kin  as  against  strangers.52  At 
common  law  an  infant  over  14  years  of  age  could  select  his  guard- 
ian by  nurture  or  in  socage ;  °8  and,  by  statutory  enactment,  an  in- 
fant of  14  may  generally  nominate  his  own  guardian,  and  such 
person  must  be  appointed  by  the  court,  if  suitable.54  It  is  even 

4 s  Bennett  v.  Byrne,  2  Barb.  Ch.  (N.  Y.)  216;  In  re  Tank's  Guardianship, 
129  Wis.  629,  109  N.  W.  565;  Cozine  v.  Horn,  1  Bradf.  Sur.  (N.  Y.)  143;  In 
re  Turner,  19  N.  J.  Eq.  433;  Badenhoof  v.  Johnson,  11  Nev.  87;  Watson  v. 
Warnock,  31  Ga.  716.  But  see  In  re  Tank's  Guardian,  129  Wis.  629,  109  N. 
W.  565;  Parker  v.  Lewis,  45  Okl.  807,  147  Pac.  310. 

*»  In  re  TULLY,  54  Misc.  Rep.  184,  105  N.  Y.  Supp.  858,  Cooley  Cas.  Per- 
sons and  Domestic  Relations,  210;  In  re  Lamb's  Estate  (Sur.)  139  N.  Y.  Supp. 
€85 ;  Hamerick  v.  People,  126  111.  App.  491 ;  Russner  v.  McMillan,  37  Wash. 
416,  7fi  Pac.  988;  Ex  parte  Mountfort,  15  Ves.  445;  Wellesley  v.  Duke  of 
Beaufort,  2  Russ.  1 ;  Thomas  v.  Roberts,  3  De  Gex  &  S.  758. 

so  Heinemann's  Appeal,  96  Pa.  112,  42  Am.  Rep.  532;  Jones  v.  Bowman, 
13  Wyo.  79,  77  Pac.  439,  67  L.  R.  A.  860;  Page  v.  Hodgdon,  63  N.  H.  53; 
Griffin  v.  Sarsfield,  2  Dem.  Sur.  (N.  Y.)  4;  In  re  Cross,  92  Misc.  Rep.  89,  155 
N.  Y.  Supp.  1020;  In  re  Tank's  Guardianship,  129  Wis.  629,  109  N.  W.  565; 
Huie  v.  Nixon,  6  Port.  (Ala.)  77;  Badenhoof  v.  Johnson,  11  Nev.  87;  Luppie 
v.  Winans,  37  N.  J.  Eq.  245;  Bennett  v.  Byrne,  2  Barb.  Ch.  (N.  Y.)  216;  In 
re  McGrath,  [1893]  1  Ch.  143. 

si  Albert  v.  Perry,  14  N.  J.  Eq.  540;  People  v.  Wilcox,  22  Barb.  (N.  Y.) 
178;  In  re  Snowball's  Estate,  156  Cal.  240,  104  Pac.  444;  Davis'  Adm'r  v. 
Davis,  162  Ky.  316,  172  S.  W.  665 ;  In  re  Tank's  Guardianship,  129  Wis.  629, 
109  N.  W.  565;  Ramsay  v.  Ramsay,  20  Wis.  507.  Where  a  child  has  been 
adopted  with  consent  of  natural  parents,  the  mother  is  not  entitled  to  ap- 
pointment as  guardian  on  the  death  of  the  father.  In  re  Masterson's  Estate, 
45  Wash.  48,  87  Pac.  1047,  122  Am.  St.  Rep.  886. 

52  Johnstone  v.  Beattie,  10  Clark  &  F.  42;  Sullivan's  Case,  1  Moll.  225; 
Albert  v.  Perry,  14  N.  J.  Eq.  540;  State  ex  rel.  Young  v.  Cook,  193  Mo.  App. 
276,  183  S.  W.  365 ;  Morehouse  v.  Cooke,  Hopk.  Ch.  (N.  Y.)  226.  There  are 
frequently  statutory  enactments  to  the  same  effect.  In  re  Dellow's  Estate, 
1  Cal.  App.  529,  82  Pac.  558.  An  uncle  has  no  legal  right  to  appointment  as 
guardian,  merely  because  he  is  competent  and  the  father  dying  intestate  de- 
sired such  appointment  Hutchins  v.  Brown,  77  N.  H.  105,  88  Atl.  706. 

OBI  Bl.  Comm.  462;  Ex  parte  Edwards,  3  Atk.  519;  Mauro  v.  Ritchie,  3 
Cranch,  C.  C.  147,  Fed.  Cas.  No.  9,312 ;  Inferior  Court  v.  Cherry,  14  Ga.  594. 

e*  Adams'  Appeal,  38  Conn.  304;   Dickerson  v.  Bowen,  128  Ga.  122,  57  S. 


§§  156-158)        SELECTION  AND  APPOINTMENT   BY  COURT  405 

held  that  the  infant  may  nominate  a  guardian  to  supersede  one  al- 
ready appointed  by  the  court,66  but  there  is  also  authority  to  the 
contrary.56 

The  appointment  of  a  married  woman  as  guardian  is  held  improp- 
er in  England,67  but  a  female  guardian  who  marries  may  be  reap- 
pointed  after  a  reference  to  ascertain  whether  her  reappointment  is 
for  the  benefit  of  the  child.88  In  this  country  it  has  been  said  to  be 
against  the  policy  of  the  law  to  appoint  a  married  woman  as  guard- 
ian,69 but  by  the  weight  of  authority,  she  is  competent  to  act  in  that 
capacity.60  When  her  husband  is  unsuitable,  the  appointment  has 
been  refused  on  the  ground  that  the  wife  would  be  under  his  in- 
fluence.61 A  nonresident  will  ordinarily  not  be  appointed,  since 
he  is  not  amenable  to  the  jurisdiction  of  the  court;  82  but  such  ap- 
pointments are  within  the  power  of  the  court,68 -unless  contrary  to 
statutory  provisions.64 

E.  326;  Wirsig  v.  Scott,  79  Neb.  322,  112  N.  W.  655;  State  ex  rel.  Finger  v. 
Reynolds,  121  Mo.  App.  699,  97  S.  W.  650;  Lunt  v.  Aubens,  39  Me.  392; 
Montgomery  v.  Smith,  3  Dana  (Ky.)  599;  Arthurs'  Appeal,  1  Grant,  Gas. 
(Pa.)  55;  Sessions  v.  Kell,  30  Miss.  458;  Burns  v.  Parker  (Tex.  Civ.  App.) 
155  S.  W.  673 ;  Kelly  v.  Smith,  15  Ala.  687.  But  see  In  re  TULLY,  54  Misc. 
Rep.  184,  105  N.  Y.  Supp.  858,  Cooley  Cas.  Persons  and  Domestic  Relations, 
210,  following  Ledwith  v.  Ledwith,  1  Dem.  Sur.  (N.  Y.)  154,  and  holding  that 
the  court  may  exercise  its  own  discretion,  though  the  person  is  a  suitable 
one.  And  see  In  re  Wyckoff,  67  Misc.  Rep.  1,  124  N.  Y.  Supp.  625. 

5 5  Sessions  v.  Kell,  30  Miss.  458;  Bryce  v.  Wynn,  50  Ga.  332;  Kelly  v. 
Smith,  15  Ala.  687;  In  re  Kirckman's  Estate,  168  Cal.  688,  144  Pac.  745; 
Dickerson  v.  Bowen,  128  Ga.  122,  57  S.  E.  326;  Montgomery  v.  Smith,  3 
Dana  (Ky.)  599.  But,  when  the  ward  has  had  one  choice,  he  cannot  supersede 
such  guardian  by  another,  unless  the  first  is  removed  for  cause.  Central 
Trust  Co.  v.  McCarroll,  141  Ky.  278,  132  S.  W.  541,  Ann.  Cas.  1912C,  475. 

SB  Gray's  Appeal,  96  Pa.  243;  Ham  v.  Ham,  15  Grat.  (Va.)  74;  Mauro  v. 
Ritchie,  3  Cranch,  C.  C.  147,  Fed.  Cas.  No.  9,312. 

e7  in  re  Kaye,  1  Ch.  App.  387. 

58  in  re  Gornall,  1  Beav.  347;    Jones  v.  Powell,  9  Beav.  345. 

09  Holley  v.  Chamberlain,  1  Redf.  Sur.  (N.  Y.)  333,  overruled  by  In  re 
Hermance,  2  Dem.  Sur.  (N.  Y.)  1;  married  women  having  been  made  compe- 
tent by  statute  in  New  York. 

co  Beard  v.  Dean,  64  Ga.  258;  Farrer  v.  Clark,  29  Miss.  195;  Jarrett  v. 
State,  5  Gill  &  J.  (Md.)  27;  Palmer  v.  Oakley,  2  Doug.  (Mich.)  433,  47  Am. 
Dec.  41;  Goss  v.  Stone,  63  Mich.  319,  29  N.  W.  735;  Ex  parte  Maxwell,  19 
Ind.  88;  Succession  of  Gaines,  42  La.  Ann.  699,  7  South.  788.  A  married 
woman  is  not  incapacitated  from  acting  as  guardian  of  her  children  by  a 
former  marriage.  Wright  v.  Wright  (Tex.  Civ.  App.)  155  S.  W.  1015. 

ci  Kettletas  v.  Gardner,  1  Paige  (N.  Y.)  488;   Ex  parte  Maxwell,  19  Ind.  88. 

ea  Logan  v.  Fairlee,  Jac.  193;  Johnstone  v.  Beattie,  10  Clark  &  F.  42,  86; 
In  re  Taylor,  3  Redf.  Sur.  (N.  Y.)  259. 

es  Daniel  v.  Newton,  8  Beav.  485;  Succession  of  Oliver,  113  La.  877,  37 
South.  862 ;  Berry  v.  Johnson,  53  Me.  401. 

e*  Finney  v.  State,  9  Mo.  227. 


406  GUARDIANS  DEFINED SELECTION  AND  APPOINTMENT     (Ch.  11 

An  executor  or  administrator  of  an  estate  in  which  an  infant  has 
an  interest  has  been  held  not  to  be  a  proper  person,  on  the  ground 
that  his  interests  may  be  adverse  to  those  of  the  child.65  But  the 
trustee  of  an  infant  is  a  proper  person,66  unless  it  appears  that  he 
has  acted  or  may  act  to  the  infant's  prejudice.67  The  rule  is  general 
that  the  court  will  not  appoint  a  person  whose  interests  are  or  may 
be  adverse  to  those  of  the  infant.68  The  court  may  appoint  a  corpo- 
ration as  guardian  where  it  is  authorized  by  statute  to  act  in  that 
capacity.69  But  the  appointment  of  a  firm  designated  in  a  will  has 
been  refused.70 

JURISDICTION  TO  APPOINT  GUARDIAN 

159.  A  guardian  can  only  be  appointed  by  a  court  within  whose  ju- 
risdiction the  minor  has  his  residence,  or  has  property. 

The  place  of  residence  of  an  infant  determines  the  court  which 
has  jurisdiction  to  appoint  a  guardian ; 71  but,  when  a  nonresident 
infant  has  property  within  the  jurisdiction,  a  guardian  may  usually 
be  appointed  by  the  court  of  the  county  where  the  property  is  sif- 

«o  Griffin  v.  Sarsfield,  2  Dem.  Sur.  (N.  Y.)  4;  Ex  parte  Crutchfleld,  3  Yerg. 
(Tenn.)  336;  Isaacs  v.  Taylor,  3  Dana  (Ky.)  600. 

««  Bennett  v.  Byrne,  2  Barb.  Ch.  (N.  Y.)  216. 

ot  As  where  he  has  subordinated  the  interest  of  the  child  to  those  of  an- 
other cestui  que  trust.  Barnsback  v.  Dewey,  13  111.  App.  581. 

««In  re  Van  Beuren's  Estate  (Sur.)  13  X.  Y.  Supp.  261;  Corwin's  Appeal, 
120  Pa.  326,  19  Atl.  38;  In  re  Brien's  Estate,  58  Him,  604,  11  N.  Y.  Supp.  522; 
In  re  Edmonson's  Estate,  78  Neb.  279,  110  N.  W.  540.  But  see  In  re  Bed- 
ford's Estate,  158  Cal.  145,  110  Pac.  302. 

GO  Minnesota  Loan  &  Trust  Co.  v.  Beebe,  40  Minn.  7,  41  N.  W.  232,  2  L.  R. 
A.  418 :  -In  re  Cordova,  4  Redf.  Sur.  (N.  Y.)  66  ?  Ledwith  v.  Ledwith,  1  Dem. 
Sur.  (N.  Y.)  154 ;  Glaser  v.  Priest,  29  Mo.  App.  1 ;  Johnson  v.  Johnson,  88  Ky. 
275,  11  S.  W.  5 ;  In  re  Brien's  Estate,  58  Hun,  604,  11  N.  Y.  Supp.  522. 

TO  De  Mazar  v.  Pybus,  4  Ves.  644. 

'i  Brown  v.  Lynch,  2  Bradf.  Sur.  (N.  Y.)  214;  Connell  v.  Moore,  70  Kan. 
88,  78  Pac.  164,  109  Am.  St  Rep.  408 ;  Ware  v.  Coleman,  6  J.  J.  Marsh.  (Ky.) 
198;  Maxsom's  Lessee  v.  Sawyer,  12  Ohio,  195;  Dorman  v.  Ogbourne,  16  Ala. 
759;  Darden  v.  Wyatt,  15  Ga.  414;  Lewis  v.  Castello,  17  Mo.  App.  593; 
Smith  v.  Young,  136  Mo.  App.  65,  117  S.  W.  628;  In  re  Conner,  93  Neb.  118, 
139  N.  W.  834;  Herring  v.  Goodson,  43  Miss.  392;  Harding  v.  Weld,  128 
Mass.  587 ;  In  re  BRADY,  10  Idaho.  366,  79  Pac.  75,  Cooley  Cas.  Persons  and 
Domestic  Relations,  212 ;  Sears  v.  Terry,  26  Conn.  273.  Letters  of  guardian- 
ship issued  to  a  person  entitled  to  custody  in  the  domicile  of  the  minor  will 
prevail  over  letters  to  a  parent  in  a  different  domicile.  Smidt  v.  Benenga,  140 
Iowa,  399,  118  N.  W.  439. 


§  159)  JURISDICTION   TO  APPOINT    GUARDIAN  407 

uated.T2  Although  the  legal  domicile  be  elsewhere,  residence  in 
fact  has  been  held  sufficient  to  confer  jurisdiction.73  An  appoint- 
ment made  when  the  infant  has  neither  a  residence  nor  property  ia 
void,  and  may  be  attacked  collaterally ; 74  but,  when  the  court  has 
jurisdiction,  an  appointment  can  only  be  set  aside  by  direct  proceed- 
ings in  the  same  court,75  and,  although  there  was  no  personal  serv- 
ice on  the  ward,  the  appointment  cannot  be  attacked  collaterally.76 

7  2  Logan  v.  Farlee,  Jac.  193;  Stephens  v.  James,  1  Mylne  &  K.  627; 
Seaverns  v  Gerke,  3  Sawy.  353,  Fed.  Gas.  No.  12,595;  Nunn  v.  Robertson, 
80  Ark.  350,  97  S.  W.  293,  Ann.  Gas.  1913E,  1197 ;  Clarke  v.  Cordis,  4  Allen 
(Mass.)  466;  In  re  Hubbard,  82  N.  Y.  90;  Rice's  Gase,  42  Mich.  528,  4  N.  W. 
284;  Davis  v.  Hudson,  29  Minn.  27,  11  N.  W.  136;  Grier  v.  McLendon,  7 
Ga.  362 ;  Barnsback  v.  Dewey,  13  111.  App.  581 ;  Neal  v.  Bartleson,  65  Tex. 
478.  A  nonresident  minor,  whose  only  property  within  the  state  was  the 
statutory  right  of  action  for  the  wrongful  death  of  a  parent,  had  an  "estate" 
within  the  state.  Williams  v.  Chicago,  B.  &  Q.  R.  Co.,  169  Mb.  App.  468,  155 
S.  W.  64. 

78j0hnstone  v.  Beattie,  10  Clark  &  F.  42;  In  re  Hubbard,  82  N.  Y.  90; 
Ross  v.  Southwestern  R.  Co.,  53  Ga.  514.  But  see  Sudler  v.  Sudler,  121  Md. 
46,  88  Atl.  26,  49  L.  R.  A.  tN.  S.)  860,  Ann.  Gas.  1913E,  1191,  holding  that  dom- 
icile and  not  place  of  abode  is  the  minor's  "residence"  within  meaning  of 
the  Maryland  statute. 

7*  Cases  cited  in  preceding  notes. 

75  Grier  v.  McLendon,  7  Ga.  362;    Sears  v.  Terry,  26  Conn.  273;   People  v. 
Wilcox,  22  Barb.  (N.  Y.)  178;   Speight  v.  Knight,  11  Ala.  461;  Pannill's  Adm'r 
v.  Galloway's  Committee,  78  Va.  387 ;    Brack  v.  Morris,  90  Kan.  64,  ,132  Pac. 
1185;   Paslick  v.  Shay,  148  Ky.  642,  147  S.  W.  369;    Williams  v.  Chicago,  B. 
&  Q.  R.  Co.,  169  Mo.  App.  468,  155  S.  W.  64 ;   Wirsig  v.  Scott,  79  Neb.  322, 
112  N.  W.  655 ;    Baker  v.  Cureton,  49  Okl.  15,  150  Pac.  1090. 

76  Board  of  Children's  Guardians  of  Marion  County  v.  Shutter,  139  Ind. 
268,  34  N.  E.  665,  31  L.  >R.  A.  740;    Kurtz  v.  St.  Paul  &  D.  R.  Co.,  48  Minn. 
339,  51  N.  W.  221,  31  Am.  St.  Rep.  657 ;    Kurtz  v.  West  Duluth  Land  Co.,  52 
Minn.  140,  53  N.  W.  1132 ;   Appeal  of  Gibson,  154  Mass.  378,  28  N.  E.  296. 


403 


BIGHTS,  DUTIES,  AND  LIABILITIES  OF  GUARDIANS          (Ch.  12 


CHAPTER  XII 
RIGHTS,  DUTIES,  AND  LIABILITIES  OF  GUARDIANS 

160.  Guardian's   Right  to  Custody  of  Ward. 

161.  Guardian's  Right  to  Ward's  Services, 
162-166.  Maintenance  of  Ward. 

163.  Contracts. 

164.  Reimbursement  for  Support. 
165-166.  Use  of  Principal  of  Estate. 

167.  Change  of  Ward's  Domicile  by  Guardian. 

16S-179.  Management  of  Ward's  Estate. 
168-169.  Guardianship    as   a    Trust 

170.  Acts  in  Excess  of  Authority. 

171.  Degree  of  Care  Required. 

172.  Collection    and    Protection   of    Property — Actions. 
173-174.  Investments. 

175.  Care  of  Real  Estate. 

176-177.  Sale  of  Real  Estate. 

178.  Sale  of  Personal  Property. 

179.  Power  to  Execute  Instruments. 

180.  Foreign  Guardians. 
181-183.  Inventory  and  Accounts. 

184.  Compensation  of  Guardian. 

185.  Settlements  Out  of  Court. 

186.  Gifts  from  Ward  to  Guardian. 


GUARDIAN'S  RIGHT  TO  CUSTODY  OF  WARD 

160.  The  guardian  is  ordinarily  entitled  to  the  custody  of  his  ward, 
except,  in  this  country,  as  against  the  parents.  In  all  cas- 
es the  courts  have  a  discretion,  and  will  award  the  custody 
as  may  be  best  for  the  interests  of  the  child. 

The  rule  of  the  English  courts  is  that  a  guardian  is  entitled  to 
the  custody  of  the  person  of  his  ward,  not  only  as  against  strangers, 
but  even  as  against  the  child's  parents.1  In  this  country  the  cus- 
tody of  the  ward  will  ordinarily  be  given  to  its  guardian,  both  as 
against  strangers  and  as  against  relations,2  with  the  exception  of 
its  parents.  The  rights  of  the  parent  are  generally  conceded  by 

i  Wright  v.  Naylor,  5  Madd.  77 ;  In  re  Andrews,  L,  R.  8  Q.  B.  153 ;  Eyre  v. 
Countess  of  Shaftsbury,  2  P.  Wins.  103. 

sColtman  v.  Hall,  31  Me.  196;  Bounell  v.  Berryhill,  2  Cart.  (Ind.)  613; 
Johns  v.  Emmert,  62  Ind.  533 ;  Ex  parte  Ralston,  R.  M.  Charlt.  (Ga.)  119. 


§  161)  GUARDIAN'S  EIGHT  TO  WARD'S  SERVICES  409 

the  courts  to  be  superior  to  those  of  the  guardian.8  The  right  to 
the  ward's  custody  is  often  regulated  by  statute.  In  the  award  of 
the  custody  of  the  child's  person,  even  as  between  parent  and 
guardian,  the  courts  will  exercise  a  reasonable  discretion,  and  when 
the  question  arises  as  to  the  right  to  its  custody,  as  between  its 
parent  and  another,4  will  be  largely  influenced  by  the  child's  best 
interests.5  If  the  child  is  of  sufficient  discretion,  the  court  will 
take  its  wishes  into  consideration.' 

GUARDIAN'S  RIGHT  TO  WARD'S  SERVICES 

161.  A  guardian,  as  such,  is  not  entitled,  like  a  parent,  to  his  ward's 
services  and  earnings. 

A  guardian,  as  such,  has  no  right  to  his  ward's  services,  corres- 
ponding to  the  parent's  right  to  the  services  of  his  minor  child.7 
When  an  infant  is  living  with  and  supported  by  his  guardian 
as  a  member  of  his  family,  and  renders  ordinary  household  serv- 
ices, it  has  been  held  that  he  may  set  off  the  value  of  such  services 
against  the  guardian's  claim  for  maintenance.8  There  are  cases, 
however,  which  hold  the  contrary.9  The  guardian,  not  being  enti- 
tled to  the  services  of  his  ward,  cannot,  as  such,  bring  an  action  for 

»  People  v.  Wilcox,  22  Barb.  (N.  Y.)  178 ;  Wood  v.  Wood,  5  Paige  (N.  Y.) 
596,  28  Am.  Dec.  451 ;  Ramsay  v.  Ramsay,  20  Wis.  507 ;  In  re  Ross'  Guardian- 
ship, 6  Cal.  App.  597,  92  Pac.  671;  Lord  v.  Hough,  37  Cal.  657.  But  see 
Mason  v.  Williams,  165  Ky.  331,  176  S.  W.  1171,  holding  that  the  right  of  a 
statutory  guardian  is  not  superior  to  that  of  a  parent.  The  guardian  is 
entitled,  to  his  ward's  custody  in  the  absence  of  an  award  to  another,  and  is 
not  answerable  for  false  imprisonment  in  asserting  his  right  thereto.  Town- 
send  v.  Kendall,  4  Minn.  412^  (Gil.  315),  77  Am.  Dec.  534. 

4  Ante,  p.  843. 

5  Roach  v.  Garvan,  1  Ves.  Sr.  157 ;   Garner  v.  Gordon,  41  Ind.  92 ;   Ward  v. 
Roper,  7  Humph.  (Tenn.)  Ill;    In  re  Heather  Children,  50  Mich.  261,  15  N. 
W.  487;    Stone  v.  Duffy,  219  Mass.  178,  106  N.  E.  595;    Smith  v.  Haas,  132 
Iowa,  493,  109  N.  W.  1075. 

s  Anon.,  2  Ves.  Sr.  374 ;    People  v.  Wilcox,  22  Barb.  (N.  Y.)  178. 

7  Haskell  v.  Jewell,  59  Vt.  91,  7  Atl.  545 ;  Zeideman  v.  Molasky,  118  Mo. 
App.  106,  94  S.  W.  754;  Bass  v.  Cook,  4  Port.  (Ala.)  390;  In  re  Clark, 
36  Hun  (N.  Y.)  301;  Denison  v.  Cornwell,  17  Serg.  &  R.  (Pa.)  377;  Hayaen 
v.  Stone,  1  Duv.  (Ky.)  400;  Blanchard  v.  Ilsley,  120  Mass.  487,  21  Am.  Rep. 
535. 

s  Phillips  v.  Davis,  2  Sneed  (Tenn.)  520,  62  Am.  Dec.  472 ;  Calhoun  v.  Cal- 
houn,  41  Ala.  369 ;  Crosby  v.  Crosby,  1  S.  C.  337.  As  to  the  right  to  charge 
for  ward's  support,  see  post,  p.  413. 

9  Moyer  v.  Fletcher,  56  Mich.  508,  23  N.  W.  198 ;  Aa-mstrong's  Heirs  v. 
Walkup,  12  Grat.  (Va.)  60S. 


410  EIGHTS,   DUTIES,  AND  LIABILITIES  OF  GUARDIANS  (Ch.  12 

loss  of  services  caused  by  a  tortious  injury,  as  for  the  seduction  of 
a  female  ward.10  If,  however,  the  guardian  stands  4n  loco  paren- 
tis,  so  that  he  has  the  same  rights  as  a  parent  would  have,  including 
the  right  to  control  the  child's  services,  he  may  maintain  such  an 
action.11 

MAINTENANCE  OF  WARD— CONTRACTS 

162.  A  guardian  is  bound  to  maintain  his  ward  from  the  income  of 

the  estate,  but  he  is  not  bound  to  furnish  support  person- 
ally, and  no  promise  on  his  part  will  be  implied,  without 
his  consent,  to  pay  even  for  necessaries  furnished  the 
ward. 

163.  A  guardian  cannot,  by  contract,  bind  either  the  ward  or  his 

estate.  He  is  primarily  personally  liable  on  contracts, 
though  made  by  him  as  guardian,  and  on  behalf  of  the 
ward,  but  in  proper  cases  he  is  entitled  to  reimbursement. 

164.  By  the  weight  of  authority,  when  the  ward  lives  with  the 

guardian  as  a  member  of  his  family,  receiving  support,  and 
rendering  the  ordinary  services  of  a  child,  the  guardian  is 
not  entitled  to  an  allowance  for  such  support,  in  the  ab- 
sence of  an  agreement,  the  relation  in  such  case  being 
quasi  parental. 

It  is  the  duty  of  the  guardian  to  maintain  and  educate  his  ward 
in  a  manner  suitable  to  his  means,  from  the  income  of  the  ward's 
estate.12  Although  the  ward's  father  is  living,  the  guardian  should 
provide  for  his  maintenance  out  of  his  estate,  provided  the  father 
is  unable  to  do  so,  and  a  court  of  equity  will  order  an  allowance  for 
such  maintenance.1* 

'  10  Blanchard  v.  Ilsley,  120  Mass.  487,  21  Am.  Rep.  535. 

11  Fernsler  v.  Moyer,  3  Watts  &  S.  (Pa.)  416,  39  Am:  Dec.  33.    See  Bartley 
v.  Richtmyer,  4  N.  Y.  38,  53  Am.  Dec.  338;    ante,  p.  376 

12  Reading  v.  Wilson,  38  X.  J.  Eq.  446;    Preble  v.  Longfellow,  48  Me.  279, 
77  Am.  Dec.  227 ;  Roscoe  v.  McDonald,  101  Mich.  313,  59  N.  W.  603,  and  cases 
hereafter  cited.     As  a  rule,  the  entire  cost  of  well-to-do  infants  shall  not 
exceed  the  interest  on  the  capital  of  their  estate.    In  re  Brown,  80  Misc.  Rep. 
4,  141  N.  Y.  Supp.  193. 

i*  Errat  v.  Barlow,  14  Ves.  202;  Ex  parte  Mountfort,  15  Ves.  449;  Clark  v. 
Montgomery,  23  Barb.  (N.  Y.)  464 ;  Beasley  v.  Watson,  41  Ala.  234 ;  Waldrom 
v.  Waldrom,  76  Ala.  285;  In  re  Alexander,  79  N.  J.  Eq.  226,  81  Atl.  732; 
In  re  Boyes'  Estate,  151  Cal.  153,  90  Pac.  454;  State  v.  Martin,  18  Mo.  App. 
468;  Newport  v.  Cook,  2  Ashm.  (Pa.)  332. 


§§  162-164)  MAINTENANCE   OP  WARD  411 

A  guardian  is  under  no  personal  obligation  to  support  his  ward, 
and  therefore  no  promise  on  his  part  will  be  implied,  as  a  matter 
of  law,  to  pay  even  for  his  ward's  necessaries.  "A  guardian  is  not 
responsible,  either  personally  or  in  his  fiduciary  character,  for  nec- 
essaries furnished  his  ward  without  his  consent,  express  or  im- 
plied." 14  If  a  guardian  should  willfully  withhold  from  his  ward 
necessaries  suited  to  his  fortune  and  condition  in  life,  equity,  or  the 
probate  or  other  court  having  jurisdiction  of  the  guardianship, 
would  compel  him  to  supply  them  and  if  a  stranger,  ad  interim, 
should  furnish  them,  he  would  be  reimbursed  out  of  the  ward's 
fortune ;  but  no  one  could  furnish  even  necessaries  without  the 
guardian's  consent,  and  maintain  an  action  against  the  guardian 
therefor.  Where,  therefore,  a  guardian  refuses  or  neglects  to  fur- 
nish his  ward  a  support,  "the  remedy  is  by  application  to  the  court, 
which  will  dismiss  the  guardian  for  neglect  of  duty,  or  the  infant 
may  himself  purchase  necessaries;  or,  if  of  such  a  tender  age  that 
he  cannot  contract  himself,  a  third  person  may  supply  his  wants. 
But  then  the  guardian  is  not  liable,  but  the  infant.  In  that  case  suit 
must  be  brought  against  the  infant,  who  can  appear  by  guardian, 
and  not  against  the  guardian  himself;  and  the  judgment,  when 
rendered,  is  against  the  infant,  and  execution  can  only  be  had  of 
the  estate  of  the  infant."  15 

Clearly,  no  consent  on  the  part  of  the  guardian  can  be  implied 
where  necessaries  are  furnished  without  his  knowledge,  nor  can  his 
consent  be  implied,  even  where  he,  has  such  knowledge,  if  the  cir- 
cumstances are  such  that  he  cannot  be  held  to  know  that  the  par- 
ty furnishing  them  believes  he  consents.  If  his  knowledge  and  ac- 
quiescence are  as  consistent  with  want  of  consent  as  with  consent, 
his  consent  will  not  be  implied.18 

i*Barnum  v.  Frost's  Adm'r,  17  Grat.  (Va.)  398;  Pinnell  v.  Hinklc,  54  W. 
Va.  119,  46  S.  E.  171;  Overton  v.  Beavers,  19  Ark.  623,  70  Am.  Dec.  610; 
Edmunds  v.  Davis,  1  Hill  (S.  C.)  279;  Tucker  v.  McKee,  1  Bailey  (S.  C.) 
344 ;  Call  v.  Ward,  4  Watts  &  S.  (Pa.)  118,  39  Am.  Dec.  64 ;  Bredin  v.  Dwen, 
2  Wjatts  (Pa.)  95;  Penfield  v.  Savage,  2  Conn.  387;  McDaniel  v.  Maun,  25 
Tex.  101 ;  Gwnltney  v.  Cannon,  31  Ind.  227 ;  State  v.  Cook,  34  N.  C.  67 ; 
Spring  v.  Woodworth,  4  Allen  (Mass.)  326.  A  guardian  has  the  same  right 
as  a  parent  to  decide  what  are  necessaries,  and  any  one  supplying  the  child 
does  so  at  his  peril.  Nicholson  v.  Spencer,  11  Ga.  607 ;  Kraker  v.  Byrum,  13 
Rich.  (S.  C.)  163 ;  McKanna  v.  Merry,  61  111.  177. 

is  Call  v.  Ward,  4  Watts  &  S.  (Pa.)  118,  39  Am.  Dec.  64. 

IB  Call  v.  Ward,  4  Watts  &  S.  (Pa.)  118,  39  Am.  Dec.  64;  Edmunds  v.  Davis, 
1  Hill  (S.  C.)  279 ;  Overton  v.  Beavers,  19  Ark.  623,  70  Am.  Dec.  610.  Where, 
on  a  father's  refusal  to  support  his  child,  a  relative  furnished  support,  it  was 


412  RIGHTS,   DUTIES,  AND  LIABILITIES  OF  GUARDIANS  (Ch.  12 

The  guardian's  authority  is  limited  to  supplying  the  needs  of 
the  ward  out  of  the  income  of  the  estate.  He  cannot,  by  contract, 
render  the  ward  personally  liable  even  for  necessaries,  nor  can  he 
bind  the  ward's  estate.17  On  contracts  made  by  him,  the  guardian 
renders  himself  personally  liable,  though  he  may  expressly  contract 
as  guardian ; 18  but  in  proper  cases  he  is  entitled  to  f eimburse- 
ment  out  of  the  ward's  estate.19  In  a  Massachusetts  case  a  guard- 
ian gave  a  promissory  note,  as  guardian,  to  effect  the  release  of  his 
ward  from  an  execution  against  the  person,  and  it  was  held  that  he 
•was  personally  liable  thereon.  In  answer  to  an  objection  that  the 
defendant  guardian  was  not  personally  liable,  as  he  contracted  only 
as  guardian,  the  court  said:  "As  an  administrator  cannot,  by  his 
promise,  bind  the  estate  of  his  intestate,  so  neither  can  the  guard- 
ian, by  his  contract,  bind  the  person  or  estate  of  his  ward.  Unless, 
therefore,  the  defendant  is  liable  to  pay  this  note,  the  plaintiff  has 
no  remedy.  But  we  are  satisfied  that  the  defendant  is  liable.  It  is 
his  promise,  made  on  a  sufficient  consideration;  and  although,  in 
the  note,  he  states  that  he  promises  as  guardian,  yet  he  is  person- 
ally bound — his  trust  being  inserted  only  to  entitle  himself  to  in- 
demnity from  his  ward,  with  which  the  plaintiff  has  no  concern."  20 
When  a  guardian  incurs  liability  in  excess  of  the  estate,  and  fails 
to  limit  his  liability,  he  is  personally  liable  for  the  excess.21 

held  that  the  child's  guardian,  who  had  no  knowledge  of  the  father's  re- 
fusal, was  not  liable  to  the  relative  for  such  support,  though  he  had  suffi- 
cient funds  belonging  to  the  ward.  Turner  v.  Flagg,  6  Ind.  App.  563,  33  N.  B. 
1104. 

IT  Jones  v.  Brewer,  1  Pick.  (Mass.)  314;  Fidelity  &  Deposit  Co.  v.  M.  Rich 
&  Bros.,  122  Ga.  506,  50  S.  E.  338 ;  Forster  v.  Fuller,  6  Mass.  58,  4  Am.  Dec. 
87;  Massachusetts  General  Hospital  v.  Fairbanks,  132  Mass.  414;  Reading 
v.  Wilson,  38  N.  J.  Eq.  446;  Aborn  v.  Janis,  62  Misc.  Rep.  95,  113  N.  Y.  Supp. 
309;  Tenney  v.  Evans,  14  N.  H.  343,  40  Am.  Dec.  194;  Sperry  v.  Fanning, 
80  111.  371 ;  State  v.  Clark,  16  Ind.  97 ;  Brown  v.  Grant,  29  W.  Va.  117,  11 
S.  E.  900 ;  Lusk  v.  Patterson,  2  Colo.  App.  306,  30  Pac.  253. 

is  Forster  v.  Fuller,  6  Mass.  58,  4  Am.  Dec.  87;  Thacher  v.  Dinsmore,  5 
Mass.  299,  4  Am.  Dec.  61 ;  Rollins  v.  Marsh,  128  Mass.  116 ;  Simms  v.  Norris, 
5  Ala.  42;  Sperry  v.  Fanning,  80  111.  371;  Hunt  v.  Maldonado,  89  Cal.  636, 
27  Pac.  56;  Reynolds  v.  Garber-Buick  Co.,  183  Mich.  157,  149  N.  W.  985, 
L.  R.  A.  1915C,  362;  Bell  v.  Dingwell,  91  Neb.  699.  136  N.  W.  1128;  McNabb 
v.  Clipp,  5  Ind.  App.  204,  31  N.  E.  858 ;  Lewis  v.  Edwards,  44  Ind.  333.  His 
promise  is  not  within  the  statute  of  frauds,  and  need  not  be  in  writing. 
Roche  v.  Chaplin,  1  Bailey  (S.  C.)  419 ;  McNabb  v.  Clipp,  5  Ind.  App.  204,  31 
N.  E.  858. 

i»  Post,  p.  414. 

20  Forster  v.  Fuller,  6  Mass.  58,  4  Am.  Dec.  87. 

21  Hutchinson  v.  Hutchinson,  19  Vt,  437;    Broadus  v.  Rosson,  3  Leigh 
(Va.)  12. 


§§  162-164)  MAINTENANCE   OP   WAKD  413 

A  guardian  cannot  exceed  the  income  of  the  estate  in  the  main- 
tenance of  his  ward,  without  leave  of  court.22  "When  a  guard- 
ian finds  that  the  income  of  the  ward's  estate  is  not  sufficient  for 
his  maintenance,  it  is  his  duty  to  submit  the  whole  matter  to  the 
consideration  of  the  court,  and  to  act  under  its  directions.  If  he 
proceeds  otherwise,  he  acts  upon  his  own  responsibility."  23  It 
has  been  held  that  a  guardian  has  no  authority  to  make  advances 
from  his  own  means  for  the  maintenance  of  his  ward,  and  that 
where  he  does  so  he  cannot  recover  the  amount  advanced,  from 
the  ward,  after  the  latter  attains  his  majority.2*  This,  however, 
cannot  prevent  a  guardian  from  advancing  the  means  necessary  to 
support  the  ward,  and  claiming  to  be  reimbursed  out  of  the  estate 
of  his  ward  which  subsequently  comes  into  his  hands.  Reimburse- 
ment will  be  allowed  in  a  proper  case.25 

By  the  weight  of  authority,  when  a  ward  is  living  with  his 
guardian  as  a  member  of  his  family  receiving  support  on  the  one 
hand  and  rendering  household  services  on  the  other  it  will  be  as- 
sumed in  the  absence  of  evidence  to  the  contrary  that  they  are 
living  in  the  relation  of  parent  and  child ;  and  the  guardian  cannot 
under  such  circumstances  charge  the  ward's  estate  for  mainte- 
nance. Nor  of  course  under  such  circumstances  could  the  ward 
recover  for  his  services.  "Where  the  family  relation  exists  whether 
natural  or  assumed,  there  is,  in  the  absence  of  an  express  agree- 
ment, or  circumstances  from  which  an  agreement  may  be  fairly 
inferred,  no  implied  obligation  to  pay  for  board,  on  the  one  hand, 
or  for  work,  on  the  other."  2a  There  are  many  cases,  however, 

2  2  Hudson  v.  Newton,  8?,  Ark.  223,  103  S.  W.  170;  Stewart  v.  Crump,,  131 
La.  463,  59  South.  903;  Campbell  v.  O'Neill,  69-  W.  Va.  459,  72  S.  E.  732; 
Fidelity  Trust  Co.  v.  Butler,  91  S.  W.  676,  28  Ky.  Law  Rep.  1268. 

23  Patton  v.  Thompson,  55  N.  C.  411,  67  Am.  Dec.  222.  And  see  post,  pp. 
414-416,  and  cases  there  cited. 

2*Preble  v.  Longfellow,  48  Me.  279,  77  Am.  Dec.  227;  In  re  Boyes'  Estate, 
151  Cal.  143,  90  Pac.  454. 

2  B  Patton  v.  Thompson,  55  N.  C.  411,  67  Am.  Dec.  222;  Johnston  v.  Cole- 
man,  56  N.  C.  293;  Withers  v.  Hickman,  6  B.  Mon.  (Ky.)  292;  Gott  v.  Gulp,. 
45  Mich.  265,  7  N.  W.  767 ;  In  re  Boyes'  Estate,  151  Cal.  143,  90  Pac.  454 ; 
Speer  v.  Tinsley,  55  Ga.  89;  In  re  Ward,  49  Misc.  Rep.  181,  98  N.  Y.  Supp. 
923 ;  Gaspard  v.  Coco,  116  La.  1096,  41  South.  326 ;  DUFFY  v.  WILLIAMS, 
133  N.  C.  195,  45  S.  E.  548,  Cooley  Cas.  Persons  and  Domestic  Relations,  215. 
But  see  Logan  v.  Gay  (Tex.  Civ.  App.)  87  S.  W.  852,  holding  that  failure  to 
procure  an  order  of  court  precedent  to  expenditure  cannot  be  remedied 
by  an  order  nunc  pro  tune. 

26  Doan  v.  Dow,  8  Ind.  App.  324,  35  N.  E.  709.  And  see  Webster  v.  Wads- 
worth,  44  Ind.  2S3 ;  ABRAMS  v.  UNITED  STATES  FIDELITY  &  GUARAN- 


414  EIGHTS,   DTJTIES,  AND   LIABILITIES  OF  GUARDIANS          (Ch.  12 

which  do  not  support  this  view,  but  which  hold  that  a  guardian 
who  takes  his  ward  into  his  family  to  live  is  entitled  to  reasonable 
compensation  for  board  and  clothing  furnished,  though  no  express 
agreement  to  charge  and  to  pay  therefor  is  shown,  and  though  the 
ward  assists  in  the  performance  of  household  duties.21 

SAME— USE  OF  PRINCIPAL  OF  ESTATE 

165.  The  guardian  is  restricted  to  the  use  of  the  income  of  the  es- 

tate in  the  maintenance  and  education  of  the  ward,  unless 
he  has  obtained  leave  of  the  court  to  use  the  principal. 

166.  Such  leave  will  be  granted  in  a  case  of  necessity,  or  where  the 

advantage  to  the  ward  clearly  demands  it.    And  the  court 
may  approve  such  use  by  the  guardian,  without  previous 
i      application  for  leave,  where  the  court  would  have  author- 
ized it  if  application  had  been  made. 

TT  CO.,  127  Wis.  579,  106  N.  W.  1091,  5  L.  R.  A.  (N.  S.)  575,  115  Am.  St 
Rep.  1055,  Cooley  Cas.  Persons  and  Domestic  Relations,  222;  Mulhern  v. 
McDavitt,  16  Gray  (Mass.)  404;  Folger  v.  Heidel,  60  Mo.  285;  Douglas'  Ap- 
peal, 82  Pa.  169 ;  Horton's  Appeal,  94  Pa.  62.  In  Otis  v.  Hall,  117  N.  Y.  131,  22 
N.  B.  563,  on  an  accounting  by  a  guardian,  It  appeared  that  having  no  chil- 
dren of  his  own,  he  had  told  the  stepfather  of  his  ward  that  he  would  take  the 
child  into  his  family,  and  bring  him  up  as  his  own ;  that  he  would  collect  cer- 
tain pension  money  due  the  ward,  and  pay  it  over  to  him,  with  interest,  when 
he  became  of  age ;  that,  upon  this  understanding,  he  was  appointed  guardian 
of  the  child,  took  him  into  his  family,  and  always  spoke  of  him  as  his  child, 
saying  that  he  had  adopted  him.  The  ward  lived  with  him,  and  did  the  usual 
work  of  the  farm.  It  was  held  that  the  guardian  stood  in  loco  parentis,  and 
was  not  entitled  to  any  allowance  for  maintenance  of  the  ward.  "It  is  well 
settled,"  said  the  court,  "that  where  parties  sustain  the  relation  of  parent 
and  child,  either  by  nature  or  adoption,  the  former,  In  the  absence  of  an 
express  promise,  cannot  be  required  to  pay  for  services  rendered  by  the 
child,  nor  the  latter  be  obliged  to  pay  for  maintenance." 

"  Moyer  v.  Fletcher,  56  Mich.  508,  23  N.  W.  198.  And  see  Armstrong's 
Heirs  v.  Walkup,  12  Grat.  (Va.)  606;  Pratt's  Adm'r  v.  Baker,  56  Vt.  70; 
Rawson  v.  Corbett,  43  111.  App.  127 ;  Pyatt  v.  Pyatt,  46  N.  J.  Eq.  285,  18  Atl. 
1048;  Mumford  v.  Rood,  36  S.  D.  80,  153  N.  W.  921;  Jacobla  v.  Terry,  92 
Mich.  275,  52  N.  Wl  629.  In  some  of  the  cases  cited,  there  were  peculiar  cir- 
cumstances which  may  be  regarded  as  distinguishing  them  from  Doan  v. 
Dow,  and  other  cases  cited  in  note  26,  supra,  so  that  they  are  not  against 
the  proposition  to  which  those  cases  are  cited.  Thus,  in  Pyatt  v.  Pyatt,  46 
N.  J.  Eq.  285,  18  Atl.  1048,  the  guardian  used  the  ward's  money  to  support 
the  ward.  This  shows  an  intention  to  charge  the  ward.  And  compare  In  re 
Livernois'  Estate,  78  Mich.  332,  44  N.  W.  279,  with  Moyer  v.  Fletcher,  56 
Mich.  508,  23  N.  W.  198. 


§§  165-166)  MAINTENANCE   OP   WARD  415 

In  the  maintenance  of  the  ward  the  guardian  is  ordinarily  author- 
ized to  use  only  the  income  of  the  estate.28  He  cannot  break  in 
upon  the  principal  without  the  sanction  of  the  court.  If  necessary, 
the  court  will  authorize  such  an  expenditure,29  but  the  guardian 
must  apply  to  the  court,  and,  if  he  assumes  to  judge  of  the  neces- 
sity himself,  he  does  so  at  his  own  risk,  and  on  his  own  respon- 
sibility.80 Such  a  rule  as  this  is  necessary  to  protect  the  property 
of  the  ward,  and  this  is  its  object.  "A  guardian,"  said  the  Illinois 
court,  "will  not  be  permitted  to  expend  upon  the  maintenance  and 
education  of  his  ward  more  than  the  income  of  the  estate,  without 
the  sanction  of  the  court.  The  court  itself,  on  an  application,  prop- 
per  as  to  time,  would  proceed  with,  the  utmost  degree  of  caution, 
and  would  withhold  its  sanction,  except  in  a  case  of  strong  neces- 
sity or  advantage  to  the  ward,  very  clearly  made  out.  In  a  case 
where  the  ward  had  considerable  expectancies,  or  his  estate  had 
not  yet  been  reduced  to  possession,  or  he  was  likely  to  suffer  for 
the  common  necessaries  of  life,  or,  exhibiting  fine  talents,  it  was 
desirable  to  expend  his  small  estate  in  his  education,  with  a  view 
to  his  future  advancement  in  life ;  in  these  and  similar  instances  of 
necessity  or  advantage  to  the  ward,  the  court  would  authorize  the 
expenditure  of  the  capital  of  his  estate."  31  The  ward's  real  prop- 
erty cannot  be  sold  to  provide  for  maintenance  without  leave  of 
court  first  obtained.32  Nor  can  the  proceeds  of  real  estate  sold  for 
reinvestment  be  so  used.33 

zs  Ante,  p.  412. 

2»Villard  v.  Robert,  2  Strob.  Eq.  (S.  C.)  40,  49  Am.  Dec.  654;  Hudson  v. 
Newton,  83  Ark.  223,  103  S.  W.  170;  Harvey  v.  Harvey,  2  P.  Wims.  21;  In  re 
Bostwick,  4  Johns.  Ch.  (N.  Y.)  100;  Roseborough  v.  Roseborough,  3  Baxt. 
(Tenn.)  314 ;  Newport  v.  Cook,  2  Ashm.  (Pa.)  332 ;  Withers  v.  Hickman,  6  B. 
Mon.  (Ky.)  292.  See,  also,  Com.  v.  Lee,  120  Ky.  433,  86  S.  W.  990,  89  S.  W. 
731. 

so  Vlllard  v.  Robert,  2  Strob.  Eq.  (S.  O.)  40,  49  Am.  Dec.  654 ;  Walker  v. 
Wetherell,  6  Ves.  473;  Lee  v.  Brown,  4  Ves.  362,  369;  In  re  Bostwick,  4 
Johns.  Ch.  (N.  Y.)  100 ;  Davis  v.  Harkness,  1  Gilman  (111.)  173,  41  Am.  Dec. 
184 ;  Beeler  v.  Dunn,  3  Head  (Tenn.)  87,  75  Am.  Dec.  761 ;  Owens  v.  Pearce, 
10  Lea  (Tenn.)  45 ;  Phillips  v.  Davis,  2  Sneed  (Tenn.)  520,  62  Am.  Dec.  472 ; 
State  v.  Clark,  16  Ind.  97;  Dowling  v.  Feeley,  72  Ga.  557;  McDowell  v. 
Caldwell,  2  McCord,  Eq.  (S.  C.)  43,  16  Am.  Dec.  635 ;  Campbell  v.  O'Neill,  69 
Wl  Va.  459,  72  S.  E.  732;  Myers  v.  Wade,  6  Rand.  (Va.)  444;  Rinker  v. 
Streit,  33  Grat.  (Va.)  663;  Johnston  v.  Coleinan,  56  N.  C.  290;  Gilbert  v. 
McBachen,  38  Miss.  469. 

si  Villard  v.  Robert,  2  Strob,  Eq.  (S.  C.)  40,  49  Am.  Dec.  654;  Com.  v.  Lee, 
120  Ky.  433,  86  S.  W.  990,  89  S.  W.  731. 

32  Fidelity  Trust  Co.  v.  Butler,  91  S.  W.  676,  28  Ky.  Law  Rep.  1268.  See, 
also,  post,  p.  436. 

as  Strong  v.  Moe,  8  Allen  (Mass.)  125;   Rinker  v.  Streit,  33  Grat  (Va.)  663. 


416  RIGHTS,  DUTIES,  AND  LIABILITIES  OF  GUARDIANS          (Ch.  12 

Though  a  guardian  always  intrenches  upon  the  principal  of  his 
ward's  estate  at  his  own  peril,  the  fact  that  he  does  so  does  not  nec- 
essarily bar  him  from  an  allowance  therefor.  The  rule,  on  the  con- 
trary, is  well  established  that  the  court  will  approve  such  a  use  of 
the  principal  by  the  guardian,  without  a  previous  application  for 
leave  of  the  court,  where  it  is  clear  that  the  court  would  have  au- 
thorized it  if  application  had  been  rflade.8* 


CHANGE  OF  WARD'S  DOMICILE  BY  GUARDIAN 

167.  A  natural  guardian  can  change  his  ward's  domicile.  Other 
guardians  can  change  the  municipal  domicile,  but,  by  the 
weight  of  authority,  they  cannot  change  the  state  or  na- 
tional domicile. 

There  is  considerable  conflict  in  the  authorities  as  to  the  power 
of  a  guardian  to  change  the  domicile  of  his  ward.  In  England  it 
is  held  that,  where  the  guardian  is  also  a  parent,  the  domicile,  ac- 
cording to  the  rule  as  between  parent  and  child,  follows  that  of  the 
parent,  although  the  child's  rights  of  succession  to  property  may 
be  thereby  altered  to  his  prejudice.85  It  has  been  doubted  whether 
a  guardian  who  is  not  a  parent  can  change  the  ward's  domicile, 
but  the  question  does  not  seem  to  have  been  passed  upon  by  the 
English  courts.88  In  this  country  the  rule  is  uniform,  as  in  Eng- 
land, that  a  natural  guardian  may  in  good  faith  change  his  ward's 
domicile  from  one  state  or  county  to  another.87  In  a  late  Iowa 
case  it  was  held  that  the  paternal  grandfather  of  an  orphan  child, 


84  Lee  v.  Brown,  4  Ves.  362;  Prince  v.  Hine,  26  Bear.  634;  In  re  Boyes' 
Estate,  151  Cal.  143,  90  Pac.  454;  Browne  v.  Bedford,  4  Dem.  Sur.  (N.  Y.) 
304 ;  In  re  Putney,  61  Misc.  Rep.  1,  114  N.  T.  Supp.  556 ;  Jarret  v.  Andrews, 
7  Bush  (Ky.)  312;  Barton  v.  Bowen,  27  Grat.  (Va.)  849;  Weathersbee  v. 
Blanton,  31  S.  C.  604,  9  S.  E.  817;  Calhoun  v.  Calhoun,  41  Ala.  369;  Rose- 
borough  v.  Roseborough,  3  Baxt  (Tenn.)  314;  Long  v.  Norcom,  37  N.  C.  354; 
Bellamy  v.  Thornton,  103  Ala.  404,  15  South.  831 ;  Maupin's  Ex'r  v.  Dulany's 
Devisees,  5  Dana  (Ky.)  589,  GO  Am.  Dec.  699. 

«6  Potinger  v.  Wightman,  3  Mer.  67;  Johnstone  v.  Beattie,  10  Clark  &  F.  42. 

8°Eversley,  Dom.  Rel.  692;  Dicey,  Dom.  100;   Jac.  Dom.  §  254. 

87  Jac.  Dom.  §  260;  Holyoke  v.  Haskins,  5  Pick.  (Mass.)  20,  16  Am.  Dec.  372; 
Pedan  v.  Robb's  Adm'r,  8  Ohio,  227 ;  In  re  Kieraan,  38  Misc.  Rep.  394,  77  N. 
T.  Supp.  924 ;  LAMAR  v.  MICOU,  112  U.  S.  452,  5  Sup.  Ct  221,  28  L.  Ed.  751, 
Cooley  Cas.  Persons  and  Domestic  Relations,  230 ;  In  re  Benton,  92  Iowa,  202, 
60  N.  W.  614,  54  Am.  St.  Rep.  546;  ante,  p.  392. 


§  167)  CHANGE   OF   WARD'S   DOMICILE   BY   GUARDIAN  417 

being  the  child's  natural  guardian,  could  change  his  domicile  to 
another  state.88 

It  seems  also  to  be  the  uniform  rule  in  this  country  that  guard- 
ians, other  than  natural  guardians,  may  change  the  municipal  dom- 
icile of  the  ward ;  that  is,  that  they  may  change  it  from  one  place 
to  another  in  the  same  state.  It  was  said  in  a  New  York  case: 
"In  the  present  instance  the  residence  of  the  infant  has  been  chang- 
ed from  one  county  to  another,  but  still  has  been  retained  under 
the  sovereignty  of  the  same  laws.  This,  I  have  no  doubt,  is  com- 
pletely within  the  scope  of  the  guardian's  authority.  No  rights 
are  impaired  or  affected  by  the  act,  the  jurisdiction  of  the  state  is 
preserved,  and  no  other  consequence  flows  from  the  change  of 
residence  than  the  substitution  of  one  officer  in  the  place  of  another 
— a  result  entirely  conformable  to  those  purposes  of  convenience 
contemplated  by  the  statute  in  regulating  the  appointment  of  a 
guardian  by  the  surrogate  of  the  county  where  the  infant  re- 
sides." 39  Whether  or  not  a  guardian,  who  is  not  a  natural  guard- 
ian, has  the  power  to  change  his  ward's  domicile  from  one  state  or 
county  to  another,  without  the  court's  consent  is  a  question  on 
which  the  decisions  conflict.40 

In  all  cases,  in  the  absence  of  statutory  restrictions  on  its  power, 
a  court  of  chancery  has  the  power  to  restrain  the  removal  of  a 
child,  where  its  interests  will  be  injuriously  affected.  The  court, 
as  the  protector  of  infants,  has  this  power,  even  as  against  a  nat- 
ural guardian,  though  it  must  be  a  very  extreme  or  special  case 


ss  In  re  Benton,  92  Iowa,  202,  60  N.  W.  614,  54  Am.  St.  Rep.  546.  But  see 
Marheineke  v.  Grothaus,  72  Mo.  204. 

a  9  Ex  parte  Bartlett,  4  Bradf.  Sur.  (N.  Y.)  221.  And  see  Jac.  Dom.  §  257; 
Kirkland  v.  Whately,  4  Allen  (Mass.)  462;  LAMAR  v.  MICOU,  112  U.  S.  452, 
5  Sup.  Ct.  221,  28  L.  Ed.  75i,  Cooley  Cas.  Persons  and  Domestic  Relations,  230 ; 
Anderson  v.  Anderson's  Estate,  42  Vt.  350,  1  Am.  Rep.  334.  But  the  domicile 
of  the  guardian  is  not  necessarily  that  of  the  ward.  School  Directors  v. 
James,  2  Watts  &  S.  (Pa.)  568,  37  Am.  Dec.  525. 

40  Daniel  v.  Hill,  52  Ala.  430;  Mears  v.  Sinclair,  1  W.  Va.  185;  Ex  parte 
Bartlett,  4  Bradf.  Sur.  (N.  Y.)  221;  Setter  v.  Straub,  1  Dem.  Sur.  (N.  Y.)  264; 
School  Directors  v.  James,  2  Watts^A  S.  (Pa.)  568,  37  Am.  Dec.  525;  Wilkins' 
Guardian,  146  Pa.  585,  23  Atl.  325;  LAMAR  v.  MICOU,  112.  U.  S.  452,  5  bup. 
Ct.  221,  28  L.  Ed.  751,  Cooley  Cas.  Persons  and  Domestic  Relations,  230.  But 
see  Pedan  v.  Robb's  Adm'r,  8  Ohio,  227 ;  Townsend  v.  Kendall,  4  Minn.  412 
(Gil.  315),  77  Am.  Dec.  534;  Wood  v.  Wood,  5  Paige  (N.  Y.)  596,  28  Am.  Dec. 
451 ;  Smidt  v.  Benenga,  140  Iowa,  399,  118  N.  W.  439 ;  White  v.  Howard,  52 
Barb.  (N.  Y.)  294;  Wheeler  v.  Hollis,  19  Tex.  522,  70  Am.  Dec.  363;  In  re 
Afflick's  Estate,  3  MacArthur  (D.  C.)  95. 
TIFF.P.&  D.REL.(3o  ED.)— 27 


418  RIGHTS,   DUTIES,  AND  LIABILITIES  OF  GUARDIANS          (Ch.  12 

to  induce  it  to  interfere.41  In  the  case  of  testamentary,  chancery, 
or  statute  guardians,  it  will  not  hesitate  to  interfere  where  its 
interference  is  necessary  for  the  child's  protection.42 

MANAGEMENT  OF  ESTATE— GUARDIANSHIP  AS  A 

TRUST 

168.  A  guardian  is  a  trustee,  and  therefore— 

(a)  He  cannot  reap  any  benefit  from  the  use  of  his  ward's  prop- 

erty. 

(b)  He  cannot  purchase  at  a  sale  of  his  ward's  property. 

(c)  He  cannot  sell  his  own  property  to  his  ward. 

169.  The  ward  has  all  the  rights,  as  against  the  guardian,  that  a 

cestui  que  trust  has  against  the  trustee.    And  therefore — 

(a)  He  may  ratify  the  wrongful  use  of  his  property  by  the  guard- 

ian, and  claim  all  profits  arising  therefrom,  or  repudiate  the 
transaction  and  hold  the  guardian  to  account. 

(b)  He  may  repudiate  purchases  of  his  real  estate  by  his  guard- 

ian, and  claim  a  resulting  trust. 

(c)  He  may  trace  and  reclaim  personal  property  converted  by  his 

guardian,  when  it  can  be  identified. 

The  relation  of  guardian  and  ward  is  that  of  trustee  and  cestui 
que  trust.48  Whenever  the  guardian  makes  use  of  the  ward's  prop- 
erty with  the  object  of  reaping  a  personal  advantage,  or  does  any 
act  which  would  amount  to  a  breach  of  trust,  either  in  fact  or  in 
law,  the  ward,  on  attaining  his  majority,  may  either  ratify  the  trans- 
action, and  take  any  profit  arising  from  it,  or  repudiate  it,  and  re- 
quire the  guardian  to  account.44 

«i  Creuze  v.  Hunter,  2  Cos,  Ch.  242;  De  Manneville  v.  De  Manneville,  10 
Ves.  52;  Wellesley  v.  Wellesley,  1  Dow.  &  C.  152;  Wood  v.  Wood,  5  Paige  (N. 
Y.)  596,  28  Am.  Dec.  451. 

42  Wood  v.  Wood,  5  Paige  (N.  Y.)  596,  28  Am.  Dec.  451. 

**  1  Story,  Eq.  Jur.  §  317 ;  2  Pom.  Eq.  Jur.  961 ;  Mathew  v.  Brise,  14  Beav. 
341;  Duke  of  Beaufort  v.  Berty,  1  P.  Wms.  703;  Gilbert  v.  Sehwenck,  14  Mees. 
&  W.  488 ;  Wall  v.  Stanwick,  34  Ch.  Div.  763 ;  Smith  v.  Smith  (D.  C.)  210  Fed. 
947,  affirmed  224  Fed.  1,  139  C.  C.  A.  465;  In  re  Toman's  Estate,  110  111.  App. 
135;  White  v.  Parker,  8  Barb.  (N.  Y.)  48;  Pepper  v.  Stone,  10  Vt  427;  Isaacs 
v.  Taylor,  3  Dana  (Ky.)  600. 

4*2  Kent,  Comm.  229;  Docker  v.  Somes,  2  Mylne  &  K.  655;  Seguin's  Appeal, 
103  Pa.  139;  White  v.  Parker,  8  Barb.  (N.  Y.)  48 ;  Kyle  v.  Bamett,  17  Ala.  306; 
Kennaird  v.  Adams,  11  B.  Mon.  (Ky.)  102:  Sparhawk  v.  Allen,  21  N.  H.  9; 
Heard  v.  Daniel,  26  Miss.  451;  Chorpenning's  Appeal,  32  Pa.  315,  72  Am.  Dec. 


§§  168-169)  MANAGEMENT   OF    WARD'S   ESTATE  419 

Equity  requires  the  utmost  good  faith  in  all  transactions  between 
guardian  and  ward.45  The  guardian  must  protect  the  ward's  estate, 
and  is  n<9t  allowed  to  make  any  profit  on  it  outside  that  which  is 
lawfully  allowed  him  for  conducting  the  trust.46  He  may  not  trade 
with  himself  on  account  of  the  ward,  or  use  or  deal  with  the  ward's 
property  for  his  own  benefit.47 

A  purchase  by  a  guardian  at  a  sale  of  the  ward's  property  will 
be  set  aside,  as  against  him,  not  only  when  he  has  taken  an  undue 
advantage,48  but,  by  the  weight  of  authority,  even  when  the  sale 
was  fairly  made,  and  for  an  adequate  price,  on  the  ground  that  a 
trustee  will  not  be  allowed  to  place  himself  in  a  position  where  his 
interests  may  be  inconsistent  with  his  duty.49  "An  inclination  has 
been  manifested  by  some  of  the  English  judges,  and  perhaps  by 
some  of  the  courts  in  this  country,  to  look  into  the  transaction, 
when  a  trustee  has  purchased  the  trust  property,  and  to  make  its 

789.  Where  a  duly  recorded  mortgage  was  assigned  to  a  guardian,  who  there- 
after, as  agent  of  a  third  party,  negotiated  a  loan  to  the  mortgagors  for  a 
payment  on  the  mortgage,  receiving  as  security  another  mortgage  on  the  same 
land,  he  had  no  authority  to  postpone  his  security  as  guardian  to  the  second 
mortgage.  Covey  v.  Leslie,  144  Mich.  165,  107  N.  W.  900. 

45  Pevehouse  v.  Adams,  52  Okl.  495,  153  Pac.  65. 

48  Brandau  v.  Greer,  95  Miss.  100,  48  South.  519,  21  Ann.  Cas.  1118. 

47  Charles  v.  Witt,  88  Kan.  484,  129  Pac.  140. 

48LePevre  v.  Laraway,  22  Barb.  (N.  Y.)  167;  Hayward  v.  Ellis,  13  Pick. 
(Mass.)  272;  Mann  v.  McDonald,  10  Humph.  (Tenn.)  275. 

4,9  2  Pom.  Eq.  Jur.  §  481;  Gary  v.  Gary,  2  Sch.  &  L.  173;  Ex  parte  James,  8 
Ves.  348 ;  Davoue  v.  Fanning,  2  Johns.  Ch.  (N.  Y.)  252 ;  Michoud  v.  Girod,  4 
How.  503,  11  L.  Ed.  1076 ;  Scott  v.  Freeland,  7  Smedes  &  M.  (Miss.)  409,  45  Am. 
Dec.  310 ;  Sunter  v.  Sunter,  190  Mass.  449,  77  N.  E.  497 ;  In  re  TANNER'S  ES- 
TATE, 218  Pa.  361,  67  Atl.  646,  Cooley  Cas.  Persons  and  Domestic  Relations, 
219 ;  Chorpenning's  Appeal,  32  Pa.  315,  72  Am.  Dec.  789 ;  Morgan  v.  Johnson, 
68  111.  190;  LeFevre  v.  Laraway,  22  Barb.  (N.  Y.)  167;  Beal  v.  Harmon,  38 
Mo.  435;  Taylor  v.  Calvert,  138  Ind.  67,  37  N.  E.  531.  In  Haynes  v.  Mont- 
gomery, 96  Ark.  573,  132  S.  W.  651,  a  purchase  by  the  guardian  of  the  ward's 
land  at  mortgage  foreclosure  sale  was  held  invalid.  In  Waldstein  v.  Barnett, 
112  Ark.  141, 165  S.  W.  459,  it  was  held  that  a  guardian,  purchasing  his  ward's 
property,  was  chargeable  with  notice  that  the  ward  had  a  special  homestead 
interest  in  the  property  and  was  bound  to  inform  the  ward  of  that  fact  be- 
fore purchasing,  and  cannot  excuse  a  failure  to  do  so  by  claiming  that  he  was 
ignorant  thereof.  A  guardian's  wife  cannot  lawfully  acquire  property  of  his 
wards,  which  the  law  forbids  him  to  acquire.  Brandau  v.  Greer,  95  Miss. 
100,  48  South.  519,  21  Ann.  Cas.  1118.  To  bring  a  case  within  the  operation 
of  this  rule,  "the  relation,"  said  the  Pennsylvania  court  in  Chorpenning's  Ap- 
peal, supra,  "must  be  one  in  which  knowledge,  by  reason  of  the  confidence  re- 
posed, might  be  acquired,  or  power  exists  to  affect  injuriously  the  interests  of 
cestuis  que  trustent,  or  advance  that  of  the  trustee.  The  reason  of  the  law 
is  its  life,  and,  unless  some  advantage  might  be  gained  by  reason  of  the  rela- 


RIGHTS,  DUTIES,  AND   LIABILITIES  OF  GUARDIANS          (Ch.  12 

validity  rest  upon  its  fairness.80  The  decided  weight  of  authority, 
however,  is  the  other  way.  The  sale  may  be  set  aside  at  the  option 
of  the  cestui  que  trust,  as  a  matter  of  course.  *  *  *  fhis  is  the 
safest  rule.  It  removes  temptation  from  the  trustee.  If  he  is  per- 
mitted, under  any  circumstances,  to  become  a  purchaser  of  the  trust 
estate,  the  deepest  frauds  may  be  cloaked  under  the  guise  of  fair- 
ness, and  exclude  the  possibility  of  proof."  51  As  against  a  subse- 
quent purchaser  from  the  guardian,  a  different  question  is  present- 
ed. Such  sale  is  not  void,  but  voidable  only,  and  an  innocent  pur- 
chaser for  value  from  the  guardian  would  acquire  a  good  title.62'  If 
a  guardian  sells  his  own  property  to  the  ward,  the  rule  is  the  same. 
The  transaction  is  voidable,  at  the  option  of  the  ward,  on  attaining 
his  majority,  or  before.58 

A  purchase  of  a  ward's  property  by  the  guardian,  or  a  sale  by 
the  guardian  of  his  own  property  to  the  ward,  is,  as  stated  above, 
merely  voidable  at  the  option  of  the  ward.  He  may  ratify  it  aft- 
er attaining  his  majority,  in  which  case,  if  he  has  full  knowledge 
of  his  rights,  and  is  not  unduly  influenced  by  the  guardian,  he  can- 
not afterwards  avoid  it.  And  his  ratification  may  be  implied  from 
his  conduct.  Thus  it  may  be  implied  from  an  unreasonable  delay 
in  taking  steps  to  have  the  transaction  set  aside  after  attaining  his 
majority,  provided  he  had  full  knowledge  of  his  rights.54  So,  al- 
so, the  receipt  by  the  ward,  on  becoming  of  age,  of  the  value  of  his 
property  purchased  by  the  guardian,  or  the  use  of  property  sold  to 
him  by  his  guardian,  is  an  affirmance  of  the  transaction,  "and  ren- 
ders it  binding.55 

tion,  the  principle  does  not  apply."  It  was  therefore  held  in  that  case  that 
a  guardian  may  purchase  the  interest  of  his  ward  when  the  sale  is  made  by  a 
public  officer,  and  is  inevitable.  In  this  case,  land  in  which  minors  had  an 
interest  as  heirs  was  sold  by  the  sheriff  under  an  execution  against  the  per- 
sonal representative  of  their  ancestor,  and  their  guardian,  who  had  no  funds 
of  the  wards,  purchased  at  the  sale.  The  purchase  was  sustained.  See,  also, 
Prevost  v.  Gratz,  Fed.  Cas.  No.  11,406 ;  Fisk  v.  Sarber,  6  Watts  &  S.  (Pa.)  18. 

60  Elrod  v.  Lancaster,  2  Head  (Tenn.)  *-71,  75  Am.  Dec.  749. 

si  Scott  v.  Freeland,  7  Smedes  &  M.  (Miss.)  409,  45  Am.  Dec.  310. 

82  Wyman  v.  Hooper,  2  Gray  (Mass.)  141;  Morrison  v.  Kinstra,  55  Miss.  71; 
Taylor  v.  Brown,  55  Mich.  482,  21  N.  W.  901. 

53  Hendee  v.  Cleaveland,  54  Vt  142. 

64  2  Kent,  Comm.  238;  Scott  v.  Freeland,  7  Smedes  &  M.  (Miss.)  409,  45  Am. 
Dec.  310;  Hoyt  v.  Sprague,  103  U.  S.  613,  26  L.  Ed.  585 ;  Teipel  v.  Vander- 
weier,  36  Minn.  443,  31  N.  W.  934 ;  Cassedy  v.  Casey,  58  Iowa,  326,  12  N.  W. 
286 ;  Sherry  v.  Sansberry,  3  Ind.  320;  In  re  Wood,  71  Mo.  623 ;  Trader  v.  Lowe, 
45  Md.  1. 

55  Scott  v.  Freeland.  7  Smedes  &  M.  (Miss).  409,  45  Am.  Dec.  310;  Caplinger 
v.  Stokes,  Meigs  (Tenn.)  175. 


§§  168-169)  MANAGEMENT   OP  WARD'S  ESTATE  421 

A  guardian  should  not  mingle  the  ward's  funds  with  his  own,  but 
should  deposit  moneys  in  bank  in  a  separate  account.56  All  the  au- 
thorities agree  that  if  the  guardian  deposits  his  ward's  moneys,  not 
only  in  his  own  name,  but  together  with  funds  of  his  own,  he  is 
liable  if  they  are  lost  by  a  failure  of  the  bank ;  and,  by  the  weight  of 
authority,  he  is  so  liable  if  he  merely  makes  the  deposit  in  his  own 
name,  without  disclosing  the  true  character  of  the  fund,  though 
there  is  no  mingling  of  it  with  his  own  moneys;  for  he  thus  ob- 
tains personal  credit  on  the  appearance  of  owning  the  deposit, 
which  is  an  advantage  to  himself  from  the  management  of  the 
ward's  moneys.57  In  a  Maryland  case,  a  guardian,  before  the  fail- 
ure of  a  bank,  had  deposited  his  ward's  money  in  his  own  name, 
and  taken  certificates  of  deposit  therefor,  but  he  did  not  give  notice 
of  his  fiduciary  relation  to  the  deposit.  It  was  held  that  he  must 
bear  the  loss  of  the  deposit  from  a  failure  of  the  bank,  though  there 
was  no  mingling  of  the  money  with  his  own  funds,  and  though  he 
made  on  the  certificates  an  indorsement  that  they  were  the  property 
of  his  ward.  The  court  said :  "At  the  same  time  that  this  court 
feels  itself  bound  to  shield  a  trustee  from  harm  in  the  honest  and 
faithful  discharge  of  his  duties  in  his  fiduciary  character,  it  is 
bound  studiously  to  exercise  a  vigilant  care  in  protecting  the  in- 
terests of  those  who,  from  their  tender  years,  are  incapable  of  pro- 
tecting themselves.  No  principle  seems  to  be  better  settled  than 
that,  in  such  a  case  as  this,  any  loss  arising  from  a  misplaced  con- 
fidence in  the  solidity  of  a  banking  institution,  or  other  depositories 
of  trust  property,  must  be  borne  by  the  trustee,  and  not  by  his  ces- 
tui  que  trust.  By  making  the  deposit  in  his  own  name,  he  gained 
a  credit  with  the  bank,  and  reaped  all  the  advantages  which  could 
be  derived  from  the  apparent  ownership  of  the  sum  deposited,  as- 
suming his  authority  so  to  make  such  a  deposit;  and,  having  re- 
ceived the  benefit,  the  law  declares,  and  justice  seems  to  require, 
that  he  should  bear  the  loss.  Nor  is  there  any  peculiar  hardship  in 

so  in  re  Allard's  Guardianship,  49  Mont.  219,  141  Pac.  661. 

BT  2  Pom.  Eq.  Jur.  §  1067;  Wren  v.  Kirton,  11  Ves.  377;  Fletcher  v.  Walker, 
3  Madd.  73;  Macdonnell  v.  Harding,  7  Sim.  178;  Jenkins  v.  Walter,  8  GUI  &  J. 
(Md.)  218,  29  Am.  Dec.  539;  McAllister  v.  Com.,  30  Pa.  536;  Williams  v.  Wil- 
liams, 55  Wis.  300,  12  N.  W.  465,  13. N.  W.  274,  42  Am.  Rep.  708;  BOOTH  v. 
WILKINSON,  78  Wis.  652,  47  N.  W.  1128,  23  Am.  St.  Rep.  443,  Cooley  Cas.  Per- 
sons and  Domestic  Relations,  217 ;  Vaiden  v.  Stubblefield's  Ex'r,  28  Grat.  (Va.) 
153.  But  see  Davis  v.  Harman,  21  Grat.  (Va.)  194;  Parsley's  Adm'r  v.  Mar- 
tin, 77  Va.  376,  46  Am.  Rep.  733. 


422  RIGHTS,  DUTIES,  AND  LIABILITIES  OF  GUARDIANS       (Ch.  12 

the  establishment  of  such  a  principle,  which  would  deter  a  prudent 
trustee  from  assuming  upon  himself  the  responsibilities  of  such  a 
fiduciary  relation  as  it  is  at  all  times  in  his  power  to  avoid  any 
risk  or  responsibility  by  clothing  the  transaction  in  its  true  colors, 
and  making  the  deposit,  not  in  his  own  name,  but  in  the  name  of 
him  who  is  the  real  owner,  and  for  whom  he  is  trusted."  88  And,  by 
the  weight  of  authority,  the  liability  of  the  guardian  is  the  same  in 
any  other  case  where  he  invests  his  ward's  funds  in  his  own  name.89 
Some  of  the  courts  have  adopted  a  less  stringent  doctrine,  and 
require  some  want  of  good  faith  on  the  part  of  the  guardian  to  ren- 
der him  liable  for  a  loss  happening  without  his  fault.  The  Vir- 
ginia court  has  held,  for  instance,  that  the  mere  fact  that  the  guard- 
ian deposits  the  ward's  funds  in  his  own  name  is  not,  alone,  suffi- 
cient to  render  him  liable  on  failure  of  the  bank,  where  there  is 
no  mingling  of  the  funds  with  his  own,  and  he  acts  in  perfect  good 
faith,  and  not  for  his  personal  advantage.60  In  this  case  two  of  the 
five  judges  dissented,  and  the  great  weight  of  authority  is  against 
the  decision.81 

Right  of  Ward  to  Follow  Trust  Property 

The  right  of  a  cestui  que  trust  to  follow  the  trust  estate,  when 
wrongfully  disposed  of  by  the  trustee,  is  thus  clearly  stated  in  Mr. 
Fetter's  work  on  Equity :  "Where  trust  property  has  been  wrong- 
fully disposed  of  by  the  trustee,  the  cestui  que  trust  may  assert  his 
right  to  the  specific  property  in  two  ways :  (a)  He  may  follow  it 
into  the  hands  of  the  person  to  whom  it  has  been  wrongfully  con- 
veyed by  the  trustee,  unless  such  person  is  a  bona  fide  purchaser 
for  value  without  notice  of  the  trust,  (b)  He  may  attach  and  fol- 
low the  property  that  has  been  substituted  for  the  trust  estate  so 
long  as  the  substituted  property  can  be  traced."  62 

»8  Jenkins  v.  Walter,  8  Gill  &  J.  (Md.)  218,  29  Am.  Dec.  539. 

s »  Knowlton  v.  Bradley,  17  N.  H.  458,  43  Am.  Dec.  609 ;  In  re  Wood's  Estate 
and  Guardianship,  159  Cal.  466,  114  Pac.  992,  36  L.  R.  A.  (N.  S.)  252;  White  v. 
Parker,  8  Barb.  (N.  Y.)  48.  In  Knowlton  v.  Bradley,  supra,  it  was  held  that 
a  guardian  taking  a  note  payable  to  himself  individually,  without  a  designa- 
tion of  his  official  capacity,  cannot  show,  on  the  failure  of  the  debtor,  that  it 
was  taken  for  the  funds  of  his  ward.  But  see  Barney  v.  Parsons'  Guardian, 
54  Vt.  623,  41  Am.  Rep.  858. 

«o  Parsley's  Adm'r  v.  Martin,  77  Va.  376,  46  Am.  Rep.  733. 

°i  See  the  cases  in  notes  57-59,  supra,  in  many  of  which  the  facts  were  sim- 
ilar to  those  in  Jenkins  v.  Walter,  8  Gill  &  J.  (Md.)  218,  29  Am.  Dec.  539.  See, 
particularly,  Williams  v.  Williams,  55  Wis.  300,  12  N.  W.  465,  13  N.  W.  274, 
42  Am.  Rep.  708. 

ez  Fetter,  Eq.  207. 


§§  168-169)  MANAGEMENT   OP   WARD'S   ESTATE  423 

This  doctrine  applies  to  guardianship.  Aside  from  the  ward's 
right  of  action  on  the  guardian's  bond  for  misappropriation  of  trust 
funds,  he  may  follow  and  recover  the  trust  property,  when  it  can 
be  traced  and  identified,  into  whosesoever  hands  it  may  come,  oth- 
er than  purchasers  for  value  without  notice,  and  in  whatsoever 
form  it  may  take.  If,  for  instance,  a  guardian  invests  trust  funds, 
in  his  own  name,  in  a  negotiable  note  or  other  security,  the  ward 
may  claim  the  note  or  other  security,  not  only  in  the  hands  of  the 
guardian,  but  also  in  the  hands  of  his  transferees,  provided  they 
are  not  purchasers  for  value,  without  notice  of  the  character  of  the 
security,  as  trust  property.63  So  if  the  guardian  unlawfully  pur- 
chases property,  real  or  personal,  with  the  funds  of  his  ward,  there 
is  a  resulting  trust  for  the  ward,  "so  that  he  may  either  claim  a 
beneficial  right  to  the  property,  or,  at  his  election,  claim  a  lien  upon 
the  property,  for  the  security  of  the  money  invested  in  it;  and,  if 
the  trustee  sell,  the  purchaser  from  him  with  notice  of  the  trust, 
stands  in  the  shoes  of  the  trustee."  64  Guardianships  are  trusts, 
and  "trusts  are  not  only  enforced  against  those  persons  who  are 
rightfully  possessed  of  the  trust  property  as  trustees,  but  against 
all  persons  who  come  into  possession  of  the  property  bound  by  the 
trust,  with  notice  of  such  trust."  6B 

So  long  as  the  ward's  property  can  be  identified  in  the  hands  of 
the  guardian  in  whatever  form  it  may  take  the  ward  is  entitled  to 
recover  it  as  against  the  guardian's  creditors  in  case  of  his  insolven- 
cy or  bankruptcy.  Thus  where  a  guardian  invested  his  ward's 
funds  in  a  promissory  note  payable  to  his  own  order  and  died  in- 
solvent, it  was  held  that  the  ward  was  entitled  to  recover  the  full 
amount  of  the  note  from  the  estate.66  But,  if  the  property  of  the 
ward  is  mingled  with  that  of  the  guardian  in  such  a  way  that  its 

63  Carpenter  v.  McBride,  3  Fla.  292,  52  Am.  Dec.  379.  And  see  Brown  v. 
Dunham,  11  Gray  (Mass.)  42;  Burdeau  v.  Davey,  43  La.  Ann.  585,  9  South.  752. 

e  4  Turner  v.  Street,  2  Rand.  (Va.)  404,  14  Am.  Dec.  792;  Durling  v.  Ham- 
mar,  20  N.  J.  Eq.  220;  Boisseau  v.  Boisseau,  79  Va.  73,  52  Am.  Rep.  616 ;  Sterl- 
ing v.  Arnold,  54  Ga.  690;  Armitage  v.  Snowden,  41  Md.  119;  Morrison  v.  Kin- 
stra,  55  Miss.  71 ;  Beazley  v.  Harris,  1  Bush  (Ky.)  533 ;  Robinson  v.  Robinson, 
22  Iowa,  427;  Patterson  v.  Booth,  103  Mo.  402,  15  S.  W.  543.  But  where  a 
guardian  purchases  property  on  his  own  credit,  and  subsequently  appropriates 
his  ward's  funds  to  the  payment  of  his  debt  therefor,  no  trust  arises  in  the 
ward's  favor.  French  v.  Sheplor,  83  Ind.  266,  43  Am.  Rep.  67;  Richardson  v. 
Day,  20  S.  C.  412. 

eoAdair  v.  Shaw,  1  Sch.  &  L.  262. 

os  Brown  v.  Dunham,  11  Gray  (Mass.)  42. 


424  RIGHTS,   DUTIES,  AND  LIABILITIES  OF  GUARDIANS          (Ch.  12 

identity  is  lost,  the  ward  has  no  rights  superior  to  those  of  general 
creditors.'7 

The  ward  cannot  follow  the  trust  property  into  the  hands  of 
purchasers  for  value,  and  without  notice,  but  his  remedy  in  such  a 
case  is  against  the  guardian  and  his  sureties."  A  guardian  has 
the  right  to  sell  the  personal  property  of  his  ward,  if  the  interests 
of  the  ward  require  him  to  do  so.  A  purchaser  from  the  guardian 
has  a  right  to  presume  that  the  guardian  is  acting  for  the  benefit 
of  the  ward,  and  he  is  not  obliged  to  see  to  the  application  of  the 
money  paid.  A  bona  fide  purchaser,  therefore,  of  the  personal  prop- 
erty of  a  ward  from  his  guardian,  will  be  protected  from  claims 
of  the  ward  because  of  the  guardian's  breach  of  trust.89 

Where  the  ward  has  once  repudiated  an  unauthorized  investment 
or  disposition  of  the  trust  property,  and  elected  to  hold  the  guard- 
ian and  his  sureties  responsible,  he  cannot  afterwards  enforce  a 
trust  against  the  property.70 


SAME— ACTS  IN  EXCESS  OF  AUTHORITY 

170.  If  a  guardian  exceeds  his  authority,  though  in  good  faith,  he 
is  liable  for  any  resulting  loss.  If  there  is  benefit  instead 
of  loss,  the  ward  may  claim  the  benefit. 

"  Covey  v.  Neff,  63  Ind.  391 ;  Vason  v.  Bell,  53  Ga.  416. 

68  Field  v.  Schieffelin,  7  Johns.  Ch.  (X.  Y.)  151,  11  Am.  Dec.  441. 

«*  A  person  dealing  with  a  guardian,  and  acquiring  property  belonging  to  the 
wards  from  him,  is  not  to  be  regarded  as  an  innocent  purchaser  of  the  prop- 
erty, if  the  transaction  was  on  the  face  of  it  a  breach  of  the  trust;  and  it  can 
make  no  difference  in  such  case  that  such  person  was  not  guilty  of  any  fraud- 
ulent intent.  Thus,  where  a  guardian  unlawfully  (post,  p.  — )  used  the  funds 
of  the  ward  to  purchase  a  real  estate  for  the  ward,  without  leave  of  court,  it 
was  held  that,  as  the  breach  of  trust  was  apparent  on  the  face  of  the  transac- 
tion, the  vendor  of  the  land,  though  he  may  have  been  innocent  of  any  actual 
fraudulent  intent,  was  to  be  regarded  as  a  participant  In  the  breach,  and  that 
he  was  liable  for  the  amount  received  by  him,  with  interest.  Boisseau  v.  Bois- 
seau,  79  Va.  73,  52  Am.  Rep.  616.  So,  where  a  person  receives  from  a  guard- 
ian, in  payment  of  the  personal  debt  of  the  guardian,  money  which  he  knows 
to  belong  to  the  ward,  the  ward  may  hold  him  liable.  It  will  not  do  for  him 
to  say  that  he  acted  in  good  faith,  for  "the  law  stamps  the  transaction  as 
fraudulent,  however  innocent  the  intention  of  the  parties ;  not  actual  fraud  in 
this  case,  but  fraud  in  law,  arising  from  a  misapplication  of  trust  funds." 
Asberry's  Adm'r  v.  Asberry's  Adm'r,  33  Grat.  (Va.)  470. 

TO  Rowley  v.  Towsley,  53  Mich.  329.  19  N.  W.  20 ;  Beam  v.  Froneberger,  75  N. 
O.  540:  Edmonds  v.  Morrison,  5  Dana  (Ky.)  223;  Clayton  v.  McKinnon,  54 
Tex.  206, 


§  171)  MANAGEMENT   OF   WARD'S   ESTATE  425 

If  the  guardian  acts  beyond  the  scope  of  his  authority,  although 
in  good  faith  and  with  the  best  intentions,  and  such  unauthorized 
transaction  is  detrimental  to  the  ward,  the  guardian  will  be  per- 
sonally liable;  but  if  it  is  beneficial  to  the  ward  the  guardian  will 
be.  protected,  and  the  ward  take  the  benefit.71  "In  equity,  the  deal- 
ing of  guardians  with  the  estates  of  their  wards  is  watched  over 
with  a  vigilant  jealousy  by  the  chancellor.  And  while  the  chan- 
cellor will  often  uphold  and  ratify  contracts  and  arrangements  made 
by  the  guardian  which  are  for  the  interest  of  his  ward,  although 
there  may  be  no  authority  or  express  sanction  of  law  for  the  special 
course  he  may  have  pursued,  yet,  if  such  contract  or  arrangement 
be  detrimental  to  the  estate  of  the  ward,  it  is  the  province  and  the 
duty  of  courts  of  equity  to  vacate  and  set  it  aside.  It  is  upon  a 
similar  principle  of  natural  justice  that  the  infant  or  minor,  when 
he  attains  his  majority,  is  permitted  to  make  his  election  to  adopt 
and  confirm  the  contracts  of  his  guardian  without  authority  of  law 
in  and  about  his  estate,  when  they  are  to  his  advantage,  and  to 
repudiate  them  if  he  deem  them  injurious.  If  the  guardian  sell  the 
land  of  his  ward  without  being  authorized  by  law,  the  ward  has 
his  election  to  accept  the  price,  or  reclaim  the  land,  when  he  comes 
of  age,  no  matter  who  has  become  the  purchaser."  72 

SAME— DEGREE  OF  CARE  REQUIRED 

171.  A  guardian  is  bound  to  exercise  ordinary  care  and  prudence, 
and  no  more,  in  the  management  of  his  ward's  estate. 

In  the  management  of  the  ward's  estate,  the  guardian  must  ex- 
ercise ordinary  prudence  and  care,  and  such  prudence  and  care 
only.  If  he  acts  as  a  prudent  man  of  business  would  do  under  sim- 

71  Milner  v.  Harewood,  18  Ves.  259;  May  v.  Duke,  61  Ala.  53;  In  re  Mells, 
64  Iowa,  391,  20  N.  W.  486;  Jackson  v.  Sears,  10  Johns.  (N.  Y.)  435;  Capehart 
v.  Huey,  1  Hill,  Eq.  (S.  C.)  405 ;  Eichelberger's  Appeal,  4  Watts  (Pa.)  84 ;  Smith 
v.   Dibrell,  31  Tex.  239,  98  Am.   Dec.  526.     "It  is  a  well-settled   principle  of 
equity  that  wherever  a  trustee,  or  one  standing  in  a  fiduciary  character,  deals 
with  the  trust  estate  for  his  own  personal  profit,  he  shall  account  to  the  ces- 
tui  que  trust  for  all  the  gain  which  he  has  made.    If  he  uses  the  trust  money 
in  speculations,  d'angerous,  though  profitable,  the  risk  will  be  his  own,  but 
the  profit  will  inure  to  the  cestui  que  trust.    Such  a  rule,  though  rigid,  is  nec- 
essary to  prevent  malversation."    Barney  v.  Saunders,  16  How.  543,  14  L.  Ed. 
1047. 

72  Smith  v.  Dibrell,  31  Tex.  239,  98  Am.  Dec.  526. 


426  RIGHTS,   DUTIES,  AND  LIABILITIES  OF  GUARDIANS          (Ch.  12 

ilar  circumstances  in  the  management  of  his  own  affairs,  and  a 
loss  results,  he  will  not  be  held  responsible,  if  he  acted  within 
the  scope  of  his  authority  and  in  good  faith.73  So  where  a  guard- 
ian, in  the  use  of  due  care,  deposits  the  ward's  funds  in  a  bank  re- 
garded as  solvent,  to  remain  for  such  time  as  may  be  'reasonably 
necessary  for  the  same  to  be  invested  under  order  of  court,  he  is 
not  liable  for  a  loss  resulting  from  the  failure  of  the  bank.74  But 
for  losses  caused  by  his  negligence  or  inexcusable  mismanagement 
he  will  be  held  to  account; 7B  and  if  he  deposits  money  in  bank  for 
a  fixed  period  under  an  unauthorized  agreement,  whereby  his  right 
to  withdraw  the  money  is  suspended  for  such  period,  he  is  liable 
for  a  loss  occurring  through  the  failure  of  the  bank.78 

So  where  a  guardian  received  a  note,  as  part  of  the  property  of 
his  ward,  executed  by  a  person  who  had  property  sufficient  to  pay 
it,  and  failed  either  to  obtain  security  for  its  payment,  or  to  obtain 
judgment  on  it,  though  he  had  sufficient  time  and  opportunity  to 

73  Ex  parte  Belchier,  Amb.  218;  Speight  v.  Gaunt,  9  App.  Cas.  1;  LAMAR 
v.  MICOU,  112  U.  S.  452,  5  Sup.  Ct.  221,  28  L.  Ed.  751,  Cooley  Cas.  Persons  and 
Domestic  Relations,  230 ;  Taylor  v.  Kellogg,  103  Mo.  App.  258,  77  S.  W.  130 ; 
Scoville  v.  Brock,  79  Vt.  449,  65  Atl.  577,  118  Am.  St.  Rep.  975;  Walker  v. 
Thompson,  145  Ky.  597,  140  S.  W.  1045 ;  In  re  Wood's  Estate  and  Guardian- 
ship, 159  Cal.  466,  114  Pac.  992,  36  L.  R.  A.  (N.  S.)  252;  Layne  v.  Clark,  152 
Ky.  310,  153  S.  W.  437;  Holeman  v.  Blue,  10  111.  App.  130;  State  v.  Morrison, 
68  N.  C.  162;  Walker  v.  Walker,  42  Ga.  135;  Barney  v.  Parsons'  Guardian,  54 
Vt  623,  41  Am.  Rep.  858;  Glover  v.  Glover,  McMul.  Eq.  (S.  C.)  153;  Taylor  v.  ' 
Hite,  61  Mo.  142.  It  is  the  policy  of  the  courts  to  sustain  if  possible,  irregu- 
lar acts  of  a  guardian,  when  done  in  good 'faith  and  without  detriment  to  the 
estate.  Duffy  v.  McHale,  35  R.  I.  16,  85  Atl.  36. 

7*Murph  v.  McCullough,  40  Tex.  Civ.  App.  403,  90  S.  W.  69;  In  re  Law, 
144  Pa.  499,  22  Atl.  831,  14  L.  R.  A.  103 ;  Corcoran  v.  Kostrometinoff ,  164  Fed. 
685,  91  C.  C.  A.  619,  21  L.  R.  A.  (N.  S.)  399 ;  In  re  Wood's  Estate  and  Guard- 
ianship, 159  Cal.  466,  114  Pac.  992,  36  L.  R.  A.  (N.  S.)  252. 

75  Kiraball  v.  Perkins,  130  Mass.  141;  Covey  v.  Leslie,  144  Mich.  165,  107  N. 
W.  900;  Shurtleff  v.  Rile,  140  Mass.  213,  4  N.  E.  407;  Pierce  v.  Prescott,  128 
Mass.  140;  Royer's  Appeal,  11  Pa.  36;  Balthaser's  Appeal,  133  Pa.  338,  19  Atl. 
403 ;  Potter  v.  Hiscox,  30  Conn.  508 ;  Boaz's  Adm'r  v.  Milliken,  S3  Ky.  634 ; 
Harris  v.  Harrison,  78  N.  C.  202. 

™  Murph  v.  McCullough,  40  Tex.  Civ.  App.  403,  90  S.  W.  69.  See,  also, 
Evans'  Estate,  7  Pa.  Super.  Ct.  142,  when  the  guardian  left  the  larger  part  of 
his  ward's  money  in  bank  uninvested  for  four  years  and  was  held  liable  for 
loss  by  failure  of  the  bank,  though  there  was  no  bad  faith.  And  in  Collins  v. 
Qooch,  97  N.  C.  186,  1  S.  E.  653,  2  Am.  St.  Rep.  284,  it  was  held  that  it  did 
not  show  prudence  on  the  part  of  the  guardian  to  deposit  his  ward's  money 
in  bank  in  another  state.  A  guardian  is  personally  liable  for  a  loss  of  funds, 
deposited  with  a  bank  for  a  fixed  period  on  a  certificate  of  deposit,  without 
security.  Corcoran  v.  Kostrometinoff,  16 i  Fed.  685,  91  C.  C.  A.  619,  21  L.  R. 
A.  (N.  S.)  399. 


§  172)  MANAGEMENT   OF   WARD'S   ESTATE  427 

do  so,  and  allowed  all  the  property  of  the  maker,  which  he  had 
assigned  for  the  benefit  of  creditors,  to  be  distributed  to  other 
creditors,  it  was  held  that  he  was  guilty  of  negligence,  and  was  lia- 
ble to  the  ward  for  the  amount  of  the  note  and  interest  thereon. 
"While  a  court,"  it  was  said,  "is  always  loth  to  surcharge  a  trus- 
tee with  money  that  never  came  into  his  hands,  and  exacts  from 
him  only  reasonable  and  ordinary  care  in  such  matters,  it  will  not 
do  for  a  guardian  to  utterly  neglect  his  duties  in  the  care  and  man- 
agement of  his  ward's  estate.  Ordinary  prudence  in  this  instance 
would  have  saved  his  ward's  money,  and  we  are  not  measuring 
his  responsibility  by  any  higher  standard.  It  is  not  too  much  to 
say  that,  had  this  been  his  own  money,  in  all  probability  it  would 
not  have  been  lost ;  and  he  ought  not  to  have  been  less  vigilant  in 
his  ward's  interest  than  he  would  have  been  in  his  own."  TT  In 
another  case  it  was  said  in  reference  to  a  guardian's  liability  for 
negligence:  "A  fiduciary  relation  requires  vigilance  as  well  as 
honesty.  A  dead  and  sluggish  calm — a  supine  negligence — is  full 
of  peril  to  the  minor.  It  is  often  as  fatal  as  positive  dishonesty."  78 

SAME— COLLECTION  AND  PROTECTION  OF  PROPERTY 

—ACTIONS 

172.  It  is  the  guardian's  duty  to  collect  and  protect  his  ward's  prop- 
erty of  every  description.    To  this  end, 

(a)  He  may  bring  suit — 

(1)  In  his  ward's  name  generally. 

(2)  In  his  own  name  on  contracts  made  by  him  as  guardian. 

(b)  He  may  accept  property  in  settlement  of  claims. 

(c)  He  may  compromise  claims. 

(d)  He  may  submit  to  arbitration. 

In  this  country  a  guardian  has  the  general  management  of  the 
ward's  estate,  and  acts  largely  according  to  his  own  discretion,  and 
at  his  own  risk,  subject,  of  course,  to  the  supervision  of  the  court  in 
the  settlement  of  his  accounts.  His  duties  and  powers  are,  in  the 
main,  those  of  all  trustees.  On  his  qualification  as  a  guardian,  it 
is  his  right  and  duty  to  take  possession  of  the  ward's  property,  of 

it  Balthaser's  Appeal,  133  Pa.  338,  19  Atl.  403. 
78  Royer's  Appeal,  11  Pa.  36. 


428  RIGHTS,  DUTIES,  AND  LIABILITIES  OF  GUARDIANS          (Ch.  12 

every  description,79  and  wherever  situated.80  It  is  his  duty  to 
make  every  reasonable  effort  to  reduce  choses  in  action  to  posses- 
sion, and  to  enforce  any  claim  which  the  ward  may  have  either 
to  real  or  to  personal  property.81  And,  of  course,  when  it  is  neces- 
sary, he  may  maintain  suits  for  this  purpose.82  A  guardian  will  be 
charged  with  loss  resulting  from  negligence  in  failing  to  perform 
these  duties.88  This  is  true  where  a  guardian  neglects  to  take  steps 

T  »  Pierce  v.  Prescott,  128  Mass.  140.  Damages  recovered  in  an  action  for 
personal  injuries  should  be  paid  to  the  guardian,  and  not  to  the  ward's  next 
friend.  City  of  Austin  v.  Colgate  (Tex.  Civ.  Apr).)  27  S.  W.  896. 

so  Potter  v.  Hiscox,  30  Conn.  508. 

«i  United  States  Fidelity  &  Guaranty  Co.  v.  State,  40  Ind.  App.  136,  81  N. 
E.  226;  Ware  v.  Ware,  28  Grat.  (Va.)  670;  Longino  v.  Delta  Bank,  75  Miss.  407, 
23  South.  178.  He  may  delegate  the  power  to  perform  any  ministerial  act, 
such  as  the  receiving  of  money  due  the  ward.  Forbes  v.  Reynard,  113  App. 
Div.  306,  98  N.  Y.  Supp.  710. 

sz  Smith  v.  Bean,  8  N.  H.  15;  Shepherd  v.  Evans,  9  Ind.  260;  Bryson  v.  Coll- 
mer,  33  Ind.  App.  494,  71  N.  E.  229;  Rousk  v.  Griffith,  65  W.  Va.  752,  65  S.  E. 
168 ;  Wright  v.  Cosmopolitan  Life  Ins.  Ass'n,  154  111.  App.  201 ;  Taylor  v.  Be- 
miss,  110  U.  S.  42,  3  Sup.  Ct.  .441,  28  L.  Ed.  64.  The  guardian  has  the  same 
control  over  his  action  as  any  other  suitor  has.  South  Bend  Land  Co.  v.  Den- 
io,  7  Wash.  303,  35  Pac.  64.  In  Boruff  v.  Stipp,  126  Ind.  32,  25  N.  E.  865,  it 
was  contended  that  a  guardian  could  not  maintain  replevin  to  recover  posses- 
sion of  his  ward's  property ;  that  an  action  for  this  purpose  should  be  brought 
by  the  infant's  next  friend,  under  the  statute  allowing  him  to  sue  by  next 
friend.  In  overruling  this  contention,  the  court  said:  "The  right  of  action 
for  the  possession  is  not  necessarily  in  the  infant,  when  he  has  a  legally  ap- 
pointed guardian,  claiming  the  possession  and  custody  of  the  personal  prop- 
erty. No  doubt,  an  infant  may,  by  his  next  friend,  in  some  instances,  prose- 
cute an  action  for  the  possession  of  personal  property;  but  the  guardian,  hav- 
ing the  custody  of  the  infant  and  the  management  of  his  estate,  may  also 
prosecute  an  action  for  the  possession  of  personal  property  owned  by  his 
ward.  Having  the  right  to  the  control  and  management  of  the  property,  he 
must,  as  a  necessary  incident,  have  the  right  to  recover  possession  of  such 
property  from  one  unlawfully  retaining  the  possession  of  the  same." 

sa  Caffrey  v.  Darby,  6  Ves.  488;  Tebbs  v.  Carpenter,  1  Madd.  290;  Balthas- 
er's  Appeal,  133  Pa.  338,  19  Atl.  403  (ante,  p.  426)  ;  Cane^  v.  Bond,  6  Beav.  486; 
Pierce  v.  Prescott,  128  Mass.  140 ;  White  v.  Parker,  8  Barb.  (N.  Y.)  48 ;  Bond 
v.  Lockwood,  33  111.  212 ;  Covington  v.  Leak,  65  X.  C.  594 ;  Carrillo  v.  McPhil- 
lips,  55  Cal.  130;  Gulp  v.  Lee,  109  N.  C.  675,  14  S.  E.'  74;  Dodson  v.  MpKelvey, 
93  Mich.  263,  53  N.  W.  517;  Boaz's  Adm'r  v.  Milliken,  83  Ky.  634.  See 
ABRAMS  v.  UNITED  STATES  FIDELITY  &  GUARANTY  CO.,  127  Wis.  579, 
106  N.  W.  1091,  5  L.  R.  A.  (N.  S.)  575,  115  Am.  St.  Rep.  1055,  Cooley  Cas. 
Persons  and  Domestic  Relations,  222,  holding  that  where  a  guardian  has  in- 
trusted a  claim  to  an  attorney  for  collection  for  the  benefit  of  the  wards,  and 
has  received  the  amounts  collected  in  bank  drafts  or  checks  which  she  indorsed 
and  returned  to  the  attorney  for  investment,  she  is  liable  for  loss  of  funds 
through  the  default  of  the  attorney.  The  existence  of  a  good  debt  or  demand 
due  the  ward  at  the  time  of  the  guardian's  appointment,  and  its  subsequent 


§  172)  MANAGEMENT   OF  WARD'S  ESTATE  429 

to  enforce  payment  of  a  note  due  his  ward,84  or  where  he  fails  to  re- 
cover possession  of  real  estate  belonging  to  his  ward,  or  to  enforce 
any  other  property  right  of  his  ward.  "In  obtaining  possession 
of  the  ward's  estate,  as  well  as  in  its  preservation  and  disposition,  a 
guardian  is  held  to  the  same  degree  of  responsibility  as  is  imposed 
upon  executors,  administrators,  and  trustees.  It  is  his  duty  to 
recover  all  the  property  of  his  ward  which  comes  to  his  knowledge, 
whether  in  possession  or  in  action.  He  must  use  due  diligence  to 
discover  its  existence.  He  is  bound  to  use  that  care  and  prudence 
which  competent  and  faithful  men  employ  in  their  own  business. 
If  he  has  knowledge  of  all  the  facts  upon  which  the  title  of  his  ward 
depends,  then  it  is  a  breach  of  duty  on  his  part  not  to  assert  and 
enforce  that  title.  It  is  an  obligation  assumed  by  accepting  the 
guardianship,  for  the  neglect  of  which  the  guardian  cannot  excuse 
himself  by  pleading  ignorance  of  the  law  on  which  the  rights  of 
his  ward  depend.  If  the  estate  suffers  loss  by  such  ignorance,  the 
guardian  is  chargeable  with  it,  on  the  ground  of  constructive  neg- 
ligence." 85  Of  course,  if  the  guardian  exercises  ordinary  prudence 
in  his  management  of  the  estate,  and  is  guilty  of  no  negligence,  he 
cannot  be  held  liable  for  losses.  If  he  exercises  ordinary  prudence, 
therefore,  he  will  not  be  held  liable  because  a  claim  becomes  worth- 
less though  it  might  have  been  collected  when  he  was  appointed.86 
Suits  brought  on  behalf  of  the  estate  should  ordinarily  be  in  the 
ward's  name,87  but  the  prevailing  rule  is  that,  on  a  contract  made 

loss,  raise  a  presumption  that  the  loss  resulted  from  his  negligence.  ROUSH 
v.  GRIFFITH,  65  W.  Va.  752,  65  S.  E.  168,  Cooley  Gas.  Persons  and  Domestic 
Relations,  226. 

8-t  Monget  v.  Walker,  4  La.  Ann.  214;  Coggins  v.  Flythe,  113  N.  C.  102,  18 
S.  E.  96.  But  when  a  guardian  acted  in  good  faith  in  the  purchase  of  a  note, 
exercising  reasonable  and  proper  care,  he  is  not  liable  because  of  failure  to 
realize  on  the  note  the  amount  expected  at  the  time  of  the  purchase.  Hen- 
derson v.  Lightner,  92  S.  W.  945,  29  Ky.  Law  Rep.  301. 

ss  Pierce  v.  Prescott,  128  Mass.  140. 

se  Stem's  Appeal,  5  Whart  (Pa.)  472,  34  Am.  Dec.  569;  Waring  v.  Darnall, 
10  Gill  &  J.  (Md.)  127;  Love  v.  Logan,  69  N.  C.  70;  ante,  p.  425. 

87  Hutchins  v.  Dresser,  26  Me.  76;  Vincent  v.  Starks,  45  Wis.  458;  Sillings  v. 
Bumgardner,  9  Grat.  (Va.)  273;  Bradley  v.  Amidon,  10  Paige  (N.  Y.)  235; 
Riggs  v.  Zaleski,  44  Conn.  120 ;  Ferine  v.  Grand  Lodge,  48  Minn.  82,  50  N.  W. 
1022;  McMullen  v.  Blecker,  64' W.  Va.  88,  60  S.  E.  1093,  131  Am.  St.  Rep.  894; 
Taylor1  v.  Superior  Court,  30  R.  I.  200,  74  Atl.  482;  Dennison  v.  Willcut,  3 
Idaho,  793,  35  Pac.  698;  Longstreet  v.  Tilton,  1  N.  J.  Law,  38.  See,  also,  Camp- 
bell v.  Fichter,  168  Ind.  645,  81  N.  E.  661,  11  Ann.  Cas.  1089,  'holding  that  a 
guardian  is  not  a  trustee  of  an  express  trust  within  Burns'  Ann.  { St.  1901,  § 
252,  providing  that  a  trustee  of  an  express  trust  may  sue  without  joining  with 


430  RIGHTS,   DUTIES,  AND  LIABILITIES  OF  GUARDIANS          (Ch.  12 

by  the  guardian  in  the  course  of  the  management  of  the  estate,  he 
should  sue  in  his  own  name.88  In  the  exercise  of  a  proper  discre- 
tion he  may  accept  real  or  personal  property  in  settlement  of  a 
claim,89  but  he  cannot  ordinarily  accept  payment  for  less  than  the 
full  amount  of  an  enforceable  debt.90  It  would  be  otherwise  if  in 
the  exercise  of  good  faith,  and  to  save  expense.91  A  guardian  may 
also  compromise  claims  against  the  ward's  estate,  and  a  submission 
to  arbitration  by  him  is  authorized,  and  will  be  binding.92 

Where  suit  is  reasonably  brought  by  a  guardian  to  recover  or 
protect  his  ward's  property,  his  expenses  for  attorney's  fees  and 
costs  will  be  allowed  out  of  the  ward's  estate.98  Allowance  will 
also  be  made  for  reasonable  counsel  fees  paid  for  advice  in  the 
management  of  the  trust,  and  for  legal  services  rendered  in  any  liti- 
gation concerning  the  ward's  estate.94  But  the  guardian  cannot 

him  the  person  for  whose  benefit  the  action  is  prosecuted.  An  action  for  per- 
sonal injuries  to  the  ward  must  be  brought  in  the  name  of  the  ward.  Pieper 
v.  Shahid,  101  S.  C.  364,  85  S.  E.  905.  And  see  Patterson  v.  Melohior,  102 
Minn.  363,  113  N.  W.  902. 

ss  Pond.v.  Curtiss,  7  Wend.  (N.  T.)  45;  Thomas  v.  Bennett,  56  Barb.  (N.  Y.) 
197 ;  McKinney  v.  Jones,  55  Wis.  39,  11  N.  W.  606,  12  N.  W.  381 ;  Hightower 
v.  Maull,  50  Ala.  495 ;  Sainsevain  v.  Luce,  4  Cal.  Unrep.  496,  35  Pac.  1033. 

s  »  Mason  v.  Buchanan,  62  Ala.  110. 

»o  Darby  v.  Stribling,  22  S.  C.  243;  Knights  Templars'  &  Masons'  Life  In- 
demnity Co.  v.  Crayton,  110  111.  App.  648,  affirmed  in  209  111.  550,  70  N.  E.  1066. 

»i  Blue  v.  Marshall,  3  P.  Wms.  381;  Torry  v.  Black,  58  N.  Y.  185;  Ordinary 
v.  Dean,  44  N.  J.  Law,  64. 

»2Weston  v.  Stuart,  11  Me.  326;  Hutchins  v.  Johnson,  12  Conn.  376,  30  Am. 
Dec.  622;  Weed  v.  Ellis,  3  Caines  (N.  Y.)  254;  Goleman  v.  Turner,  14  Smedes 
&  M.  (Miss.)  118 ;  Strong  v.  Beroujon,  18  Ala.  168 ;  Nashville  Lumber  Co.  v. 
Barefield,  93  Ark.  353,  124  S.  W.  758.  20  Ann.  Cas.  968;  Grievance  Committee 
v.  Ennis,  84  Conn.  594,  80  Atl.  767 ;  Dwyer  v.  Corrugated  Paper  Products  Co., 
80  Misc.  Rep.  412,  141  N.  Y.  Supp.  240 ;  Kelley  v.  Adams,  120  Ind.  340,  22  N.  E. 
317 ;  Jones  v.  Bond,  76  Ga.  517.  But  not  where  the  interests  of  the  guardian 
and  ward  are  antagonistic.  Fortune  v.  Killebrew,  86  Tex.  172,  23  S.  W.  976. 
A  guardian  may  not  confess  judgment  against  his  ward.  Boudreaux  v.  Low- 
er Terrehonne  Refining  &  Mfg.  Co.,  127  La.  98,  53  South.  456.  A  parent  has 
no  implied  authority  to  compromise  or  settle  a  cause  of  action  of  his  infant 
child,  Missouri  Pac.  Ry.  Co.  v.  Lasca,  79  Kan.  311,  99  Pac.  616,  21  L.  R.  A. 
(N.  S.)  338,  17  Ann.  Cas.  605. 

»3  In  re  Flinn.  31  N.  J.  Eq.  640:  Alexander  v.  Alexander,  5  Ala.  517; 
Bitkerstaff  v.  Marlin,  60  Miss.  509,  45  Am.  Rep.  418;  Sears  v.  Collie,  148 
Ky.  444,  146  S.  W.  1117 ;  Succession  of  Hanna.  135  La.  1043,  66  South.  355 ; 
Taylor  v.  Bemiss,  110  U.  S.  42.  3  Sup.  Ct.  441,  28  L.  Ed.  64.  And  so,  also,  for 
defending  suits.  Mathes  v.  Bennett,  21  N.  H.  204;  Wilhelm  v.  Hendrick,  167 
Ky.  219,  180  S.  W.  516.  But  an  improvident  contract  will  not  be  upheld. 
Wheeler  v.  James  &  James  (Ky.)  120  S.  W.  350. 

»<Voessing  v.  Voessing.  4  Redf.  Sur.  (N.  Y.)  360;  State  v.  Foy,  65  N.  C. 
265;  Moore  v.  Shields,  C9  N.  C.  50;  Alexander  v.  Alexander,  8  Ala.  796; 


§§  173-174)  MANAGEMENT   OF   WARD'S   ESTATE  431 

charge  his  ward  with  attorney's  fees  made  necessary  by  his  own 
negligence.96 

- 

SAME— INVESTMENTS 

173.  A  guardian  must  invest  his  ward's  funds  within  a  reasonable 

time;  and  if  he  fails  to  do  so  he  will  be  charged  interest, 
or,  in  case  of  gross  delinquency,  compound  interest. 

174.  He  cannot  invest  money  on  the  credit  of  individuals  or  firms, 

nor,  in  some  states,  in  stock  in  corporations,  nor  can  he 
convert  personalty  into  real  estate,  without  leave  of  court, 
but  generally  he  is  only  called  upon  to  use  the  care  of  a 
prudent  man  of  business. 

It  is  the  duty  of  the  guardian,  as  soon  as  it  can  reasonably  be 
done  to  advantage,  to  invest  his  ward's  funds  in  productive  se- 
curities.96 He  is  usually  allowed  a  reasonable  period,  varying 
from  six  months  to  a  year  for  this  purpose,  and  where  he  unrea- 
sonably delays  he  will  be  charged  interest.97  Where  the  guardian 
uses  the  ward's  money  in  his  business,  or  otherwise  converts  it  to 
his  own  use,  or  is  guilty  of  gross  delinquency  in  his  failure  to  invest, 
he  will  be  charged  with  compound  interest.98 

Caldwell  v.  Young,  21  Tex.  800.  Also  for  clerk  hire.  McWhorter  v.  Benson, 
Hopk.  Ch.  (N.  Y.)  28;  Van  Derheyden  v.  Van  Derheyden,  2  Paige  (N.  Y.)  287, 
21  Am.  Dec.  86. 

»5  Rawson  v.  Corbett,  43  111.  App.  127. 

98  The  surety  on  a  guardian's  bond  may,  through  the  proper  court,  compel 
the  guardian  to  make  a  proper  and  lawful  investment  of  the  ward's  money. 
American  Surety  Co.  v.  Sperry,  171  111.  App.  56. 

972  Kent,  Comm.  231 ;  Goff's  Guardian  v.  Goff,  123  Ky.  73,  93  S.  W.  625, 
29  Ky.  Law  Rep.  501 ;  Murph  v.  McCullough,  40  Tex.  Civ.  App.  403,  90  S.  W. 
69 ;  Corcoran  v.  Renehan,  24  App.  D.  C.  411 ;  'Merritt  v.  Wallace,  76  Ark. 
217,  88  S.  W.  876;  Boynton  v.  Dyer,  18  Pick.  (Mass.)  1;  Worrell's  Appeal, 
23  Pa.  44 ;  Karr's  Adm'r  v.  Karr,  6  Dana  (Ky.)  3 ;  White  v.  Parker,  8  Barb. 
(N.  Y.)  48;  Dunscomb  v.  Dunscomb,  1  Johns.  Ch,  (N.  Y.)  508,  7  Am.  Dec. 
504;  Owen  y.  Peebles,  42  Ala.  338;  Pettus  v.  Sutton,  10  Rich.  Eq.  (S.  C.) 
356 ;  Crosby  V.  Merriam,  31  Minn.  342,  17  N.  W.  950;  Armstrong's  Heirs  v. 
Walkup,  12  Grat  (Va.)  608;  Barney  v.  Saunders,  16  How.  535,  14  L.  Ed. 
1047;  Rawson  v.  Corbett,  43  111.  App.  127.  No  interest  will  be  charged  on 
what  is  kept  on  hand  for  ordinary  current  expenses.  Knowlton  v.  Bradley, 
17  N.  H.  458,  43  Am.  Dec.  609,  Baker's  Appeal,  8  Serg.  &  R.  (Pa.)  12.  A 
guardian  is  not  liable  for  interest  during  the  first  year  after  his  appointment 
unless  there  is  interest  earned.  Griffin  v.  Collins,  125  Ga.  159,  53  S.  E.  1004. 

98  2  Kent,  Comm.  231 ;  Glassell  v.  Glassell,  147  Cal.  510,  82  Pac.  42 ;  Far- 
well  v.  Steen,  46  Vt.  678 ;  Swindall  v.  Swindall,  43  N.  C.  285 ;  Stark  v.  Gam- 
ble, 43  N.  H.  465;  Clay  v.  Clay,  3  Mete.  (Ky.)  548;  Snavely  v.  Harkrader, 


432  RIGHTS,  DUTIES,  AND  LIABILITIES  OF  GUARDIANS          (Ch.  12 

The  authorities  as  to  the  character  of  the  investments  which  a 
guardian  or  other  trustee  is  authorized  to  make  are  not  in  accord. 
Investments  are  allowed  in  some  states  which  are  not  allowed  in 
others.  "The  general  rule  is  everywhere  recognized,  that  a  guard- 
ian or  trustee,  when  investing  property  in  his  hands,  is  bound  to 
act  honestly  and  faithfully,  and  to  exercise  a  sound  discretion,  such 
as  men  of  ordinary  prudence  and  intelligence  use  in  their  own  af- 
fairs." 89  In  some  jurisdictions  no  attempt  has  been  made  to  es- 
tablish a  more  definite  rule.1  In  others  the  discretion  has  been 
confined  by  the  Legislature  or  the  courts  within  strict  limits. 

Prior  to  the  Declaration  of  Independence  the  Court  of  Chancery 
in  England  allowed  considerable  latitude  to  guardians  and  other 
trustees  in  the  investment  of  trust  funds.  They  could  invest,  not 
only  in  public  funds  and  real  estate  securities,  but  also  in  stock 
in  private  corporations.2  They  could  not,  however,  by  the  weight 
of  authority,  invest  in  a  mere  personal  obligation,  like  a  promissory 
note,  without  other  than  private  security.8  Later  the  court  limited 
trust  investments  to  the  public  funds,  and  excluded  investments  in 
bank  stock,  or  other  corporate  stock,  or  in  mortgages  of  real  estate. 
In  this  state  of  the  law,  Parliament  passed  acts,  and  orders  in  chan- 
cery were  made  pursuant  thereto,  authorizing  trustees  to  invest  in 


29  Grat.  (Va.)  112 ;  Boynton  v.  Dyer,  18  Pick.  (Mass.)  1 ;  Barney  v.  Saunders, 
16  How.  535,  14  I*  Ed.  1047;  Hughes  v.  People,  111  111.  457;  In  re  Eschrich, 
85  Cal.  98,  24  Pac.  634.  But  see  Goffs  Guardian  v.  Goff,  93  S.  W.  625,  29 
Ky.  Law  Rep.  501,  holding  that  if  a  guardian  uses  the  ward's  estato  in  his 
own  business,  or  mingles  the  ward's  money  with  his  own,  so  that  it  becomes 
undistinguishable,  he  must  account  for  at  least  legal  interest;  and,  if  he 
made  a  greater  profit,  he  must  account  for  that  also. 

88  LAMAB  v.  MICOU,  112  U.  S.  452,  5  Sup.  Ct  221,  28  L.  Ed.  751,  Cooley 
Cas.  Persons  and  Domestic  Relations,  230.  A  guardian,  complying  with  an  or- 
der as  to  investment  of  funds  is  protected  against  loss,  if  otherwise  free 
from  negligence.  Mumford  v.  Rood,  36  S.  D.  80,  153  S.  W.  921. 

1  LAMAR  v.  MICOU,  112  J.  S.  452,  5  Sup.  Ct.  221,  28  L.  Ed.  751,  Cooley  Cas. 
Persons  and  Domestic  Relations,  230   (collecting  authorities) ;    Boggs  v.  Ad- 
ger,  4  Rich.  Eq.  (S.  C.)  408,  411;    Brown  v.  Wright,  39  <?a.  96:    Foscue  v. 
Lyon,  55  Ala.  440;    Brown   v.  Campbell,  Hopk.   Ch.   (N.  Y.)  233;  Harvard 
College  v.  Amory,  9  Pick.  (Mass.)  446,  461 ;    Lovell  v.  Minot,  20  Pick.  (Mass.) 
116,  119,  32  Am.  Dec.  206;    Brown  v.  French,  125  Mass.  410,  28  Am.  Rep. 
254;    Bowker  v.  Pierce,  130  Mass.  262. 

2  Jackson  v.  Jackson,  1  Atk.  513,  514. 

s  Ryder  v.  Bickerton,  3  Swanst  80,  note ;  Adye  v.  Feuilleteau,  1  Cox,  Ch. 
24:  Holmes  v.  Dring,  2  Cox,  Ch.  1:  Powell  v.  Evans,  5  Ves.  839.  But  see 
Knight  v.  Plimouth,  3  Atk.  480;  Harden  v.  Parsons,  1  Eden,  145. 


§§  173-174)  MANAGEMENT   CP  WARD'S  ESTATE  433 

stock  of  the  Bank  of  England  or  of  Ireland,  or  upon  real  estate 
securities  as  well  as  in  the  public  funds.4 

In  this  country  the  courts  are  not  entirely  agreed  as  to  what  are 
to  be  deemed  proper  investments  by  a  guardian  or  other  trustee. 
In  some  states'  the  question  is  regulated  by  statute.  Perhaps  in  all 
the  states  he  is  authorized  to  invest  in  public  or  real  securities,  like 
government  bonds  and  real  estate  mortgages.5  Perhaps  in  most 
states  he  may  invest  in  stock  in  corporations,  like  railroad  and  bank 
stock.6  In  some  states  such  an  investment  is  not  authorized.7  By 
the  great  weight  of  authority,  guardians  and  the  sureties  on  their 
bonds  are  responsible  for  losses  occurring  through  unsecured,  or 
insufficiently  secured,  loans  or  investments  made  on  the  credit  of 
individuals  or  firms,  however  solvent  the  individual  or  firm  may 
be  when  the  loan  or  investment  is  made — mere  personal  security 

*  LAMAR  v.  MICOU,  112  U.  S.  452,  5  Sup.  Ct.  221,  28  L.  Ed.  751,  Cooley  Cas. 
Persons  and  Domestic  Relations,  230. 

s  Gray  v.  Fox,  1  N.  J.  Eq.  259,  22  Am.  Dec.  508 ;  Stevens  v.  Meserve,  73 
N.  H.  293,  61  Atl.  420,  111  Am.  St.  Rep.  612;  In  re  Wisner's  Estate,  145 
Iowa,  151,  123  N.  W.  978;  Worrell's  Appeal,  9  Pa.  508;  Nance  v.  Nance,  1 
S.  C.  209;  Smith  v.  Smith,  7  J.  J.  Marsh.  (Ky.)  238.  But  see  In  re  Wood's 
Estate,  247  Pa.'  478,  93  Atl.  634. 

e  Lovell  v.  Minot,  20  Pick.  (Mass.)  116,  32  Am.  Dec.  206 ;  Harvard  College 
v.  Amory,  9  Pick.  (Mass.)  446,  461 ;  Brown  v.  French,  125  Mass.  410,  28  Am. 
Rep.  254 ;  Bowker  v.  Pierce,  130  Mass.  262 ;  Smyth  v.  Burns'  Adm'rs,  25  Miss. 
422;  Hammond  v.  Hammond,  2  Bland  (Md.)  306;  Gray  v.  Lynch,  8  Gill 
(Md.)  403;  Murray  v.  Feinour,  2  Md.  Ch.  418;  Boggs  v.  Adgcr,  4  Rich.  Eq. 
(S.  C.)  408;  Haddock  v.  Bank,  66  Ga.  496;  Fidelity  Trust  &  Safety  Vault 
Co.  v.  Glover,  90  Ky.  355,  14  S.  W.  343 ;  Durett  V.  Com.,  90  Ky.  312,  14  S. 
W.  189.  Where  corporate  stock  is  held  a  good  investment,  a  guardian  may 
invest  in  a  note  secured  by  such  stock.  Lovell  v.  Minot,  supra. 

7  In  many  states  the  rule  is  against  such  an  investment.  In  a  New  York 
case  it  was  said:  "It  is  not  denied  that  the  employment  of  the  fund,  as  a 
Capital  in  trade,  would  be  a  clear  departure  from  the  duty  of  trustees.  If 
it  cannot  be  so  employed  under  the  management  of  a  copartnership,  I  see  no 
reason  for  saying  that  the  incorporation  of  the  partners  tends,  in  any  degree, 
to  justify  it.  The  moment  the  fund  is  Invested  in  bank  or  insurance  or  rail- 
road stock,  it  has  left  the  control  of  the  trustees.  Its  safety  and  the  hazard 
or  risk  of  loss  is  no  longer  dependent  upon  their  skill,  care,  or  discretion  in 
its  custody  or  management ;  and  the  terms  of  the  investment  do  not  contem- 
plate that  it  ever  will  be  returned  to  the  trustees."  King  v.  Talbot,  40  N.  Y. 
76.  And  see  Worrell's  Appeal,  9  Pa.  508;  Allen  v.  Gaillard,  1  S.  C.  279; 
French  v.  Currier,  47  N.  H.  88;  Gray  v.  Fox,  1  N.  J.  Eq.  259,  268,  22  Am. 
Dec.  508;  Halsted  v.  Meeker's  Ex'rs,  18  N.  J.  Eq.  136;  Lathrop  v.  Smal- 
ley's  Ex'rs,  23  N.  J.  Eq.  192 ;  Ihmsen's  Appeal,  43  Pa.  431 ;  Smith  v.  Smith, 
7  J.  J.  Marsh.  (Ky.)  238.  An  unauthorized  investment  of  a  ward's  funds  is 
not  void,  but  voidable  only,  as  against  one  who  takes  the  ward's  property 
with  knowledge  that  the  guardian  has  no  authority  to  transfer  it.  McCutch- 
en  v.  Roush,  139  Iowa,  351,  115  N.  W.  903.  A  guardian  cannot,  without  au- 
TIFF.P.&  D.REL.(3o  ED.)— 28 


434  RIGHTS,   DUTIES,  AND   LIABILITIES  OP  GUARDIANS          (Ch.  12 

not  being  deemed  sufficient.8  And  it  is  well  settled  that  a  guardian 
has  no  authority  to  subject  his  ward's  estate  to  the  hazards  of  trade, 
and  that  if  he  does  so,  and  a  loss  instead  of  a  profit,  results,  he  and 
his  sureties  will  be  responsible.9 

A  guardian  cannot,  without  leave  of  court  first  obtained,  change 
the  form  of  the  investment 10  or  convert  personalty  into  real  estate, 
as  by  investing  his  ward's  funds  in  the  purchase  of  land.11  Nor 
can  he  erect  buildings  on  land  of  the  ward,  or  make  permanent  addi- 
tions to  buildings  already  thereon.12  But  he  may  pay  taxes  and 

thority  from  the  probate  court,  accept  shares  In  a  corporation  to  be  or- 
ganized for  the  ward's  interest  in  the  estate.  Davidson  v.  I.  M.  Davidson 
Real  Estate  &  Investment  Co.,  226  Mo.  1,  125  S.  W.  1143,  136  Am.  St.  Rep. 
615. 

8  Olark  v.  Garfleld,  8  Allen  (Mass.)  427 ;  Smith  v.  Smith,  4  Johns.  Ch.  (N. 
Y.)  281;  Gray  v.  Fox,  1  N.  J.  Eq.  259,  22  Am.  Dec.  508;  In  re  Moore,  112 
Me.  119,  90  Atl.  1088,  Ann.  Gas.  1917A,  645 ;  Clay  v.  Clay,  3  Mete.  (Ky.)  548 ; 
Covington  v.  Leak,  65  N.  C.  594;  Boyett  v.  Hurst,  54  N.  C.  166.  But  see 
Konigmacher  v.  Kimmel,  1  Pen.  &  W.  (Pa.)  207,  21  Am.  Dec.  374.  In  North 
Carolina  it  seems  that  an  investment  in  a  note  with  sureties  is  good.  Co- 
vington v.  Leak,  65  N.  C.  594.  And  in  some  states  investments  in  the  unse- 
cured personal  obligation  of  an  individual  or  firm  have  been  sustained.  See 
Foscue  v.  Lyon,  55  Ala.  440,  452.  Money  placed  temporarily  in  bank  at  in- 
terest, though  it  can  only  be  withdrawn  on  two  weeks'  notice,  is  not  an  in- 
vestment; and,  if  the  bank  is  in  good  repute,  the  guardian  will  not  be  liable 
if  it  subsequently  fails.  Law's  Estate,  144  Pa.  499,  22  Atl.  831,  14  L,  R.  A. 
103.  It  is  otherwise  where  money  is  invested  in  a  certificate  of  deposit  of 
a  bank  in  another  state.  '  Such  an  investment  is  at  the  guardian's  risk. 
Collins  v.  Gooch,  97  N.  C.  186,  1  S.  E.  653,  2  Am.  St.  Rep.  284. 

»  Martin  v.  Davis,  80  Wis.  376,  50  N.  W.  171;  Michael  v.  Locke,  80  Mo.  548; 
Corcoran  v.  Allen,  11  R.  I.  567.  See  Hoyt  v.  Sprague,  103  U.  S.  613,  26  L. 
Ed.  585.  Where  a  guardian  purchased  railroad  stocks  and  bonds,  and  sold 
the  bonds  for  a  sum  equal  to  the  amount  invested,  and  afterwards  sold  the 
stocks  for  an  amount  which  was  clear  profit,  he  was  liable  for  the  proceeds 
of  the  stocks.  Martinez  v.  Meyers,  181  Ala.  293,  61  South.  810.  The  reten- 
tion of  money  in  his  own  hands,  giving  a  note  therefor,  is  not  an  "invest- 
ment." Fidelity  &  Deposit  Co.  v.  Freud,  115  Md.  29,  80  Atl.  603. 

1°  Moyers  v.  Kinnick,  1  Tenn.  Ch.  App.  65;  Los  Angeles  County  v.  Winans, 
13  Cal.  App.  234,  109  Pac.  640;  McCutchen  v.  Roush,  13P  Iowa,  351,  115 
N.  W.  903. 

n2  Kent,- Comm.  230;  Perry,  Trusts,  §§  605,  606;  Witter  v.  Witter,  3  P. 
Wms.  99;  Ware  v.  Polhill,  11  Ves.  257;  Royer's  Appeal,  11  Pa.  36;  Woods 
v.  Boots,  60  Mo.  546 ;  Boisseau  v.  Boisseau,  79  Va.  73,  52  Am.  Rep.  616 ;  Skel- 
ton  v.  Ordinary,  32  Ga.  266.  A  guardian  may  not  purchase  real  estate,  where 
the  purchase  price  exceeds  the  funds  available,  thus  creating  a  debt  against 
the  estate.  Harris  v.  Preston,  153  Ky.  810,  156  S.  W.  902.  The  court  may 
by  general  order  authorize  a  guardian  to  invest  the  ward's  money  in  real  es- 
tate. In  re  Wisner's  Estate,  145  Iowa,  151,  123  N.  W.  978. 

12  Murphy  v.  Walker,  131  Mass.  341 ;  Burke  &  Williams  v.  Mackenzie,  124 
Ga.  248,  52  S.  E.  653;  In  re  Miller's  Estate,  1  Pa.  326;  Snodgrass'  Appeal, 


§§   173-174)  MANAGEMENT   OF  WARD'S  ESTATE  435 

incumbrances  from  the  income  of  the  estate,  when  necessary  for 
the  preservation  of  the  property,  and  he  will  be  reimbursed  there- 
for, though  he  has  acted  without  the  previous  sanction  of  the 
court.13 

When  the  matter  is  not  regulated  by  statute,  or  settled  by  judi- 
cial precedent  in  the  particular  jurisdiction,  a  guardian  will  general- 
ly be  protected  where  he  uses  such  care  as  would  be  exercised  by 
a  prudent  man  of  business  in  selecting  a  security  for  an  investment, 
and  not  for  speculation.14  "If  a  trustee  acts  with  good  faith,  and 
a  sound  discretion,  in  the  investment  of  trust  funds,  he  is  not  to 
be  held  responsible  for  any  loss  which  may  happen."  15  "All  that 
can  be  required  of  a  trustee  to  invest  is  that  he  shall  conduct  him- 
self faithfully,  and  exercise  a  sound  discretion.  He  is  to  observe 
how  men  of  prudence,  discretion,  and  intelligence  manage  their 
own  affairs,  not  in  regard  to  speculation,  but  in  regard  to  the  per- 
manent disposition  of  their  funds,  considering  the  probable  income, 
as  well  as  the  probable  safety,  of  the  capital  to  be  invested."  18 
When  a  guardian  is  appointed  in  a  state  which  is  not  his  ward's 
domicile,  he  should  not,  in  accounting  for  his  investments,  be  held 
to  a  narrower  range  of  securities  than  is  allowed  by  the  law  of  the 
domicile.17 

37  Pa.  377;  Hassard  v.  Rowe,  11  Barb.  (N.  Y.)  22;  Copley  v.  O'Neil,  39  How. 
Prac.  (N.  Y.)  41 ;  Green  v.  Winter,  1  Johns.  Ch.  (N.  Y.)  26,  7  Am.  Dec.  475 ; 
Cheney  v,  Roodhouse,  135  111.  257,  25  N.  E.  1019 ;  Payne  v.  Stone,  7  Smedes 
&  M.  (Miss.)  367.  But  see  May  y.  May,  109  Mass.  257,  where  the  cost  of  a 
building  erected  for  use,  and  not  for  an  investment,  was  allowed  the  guardian 
of  an  insane  ward,  the  court  saying:  "It  could  not  be  said  to  be  an  unrea- 
sonable expenditure  for  a  man  of  like  fortune  and  circumstances,  not  under 
guardianship;  and  we  think  the  fact  of  guardianship  furnishes  no  sufficient 
ground,  in  the  present  case,  for  its  disallowance." 

is  Wright  v.  Comley,  14  111.  App.  551 ;  March  v.  Bennett,  1  Vern.  428 ;  Wa- 
ters v.  Ebrall,  2  Vern.  606. 

i*  Clark  v.  Garfield,  8  Allen  (Mass.)  427;  Harvard  College  v.  Amory,  9  Pick. 
(Mass.)  446;  Lovell  v.  Minot,  20  Pick.  (Mass.)  116,  32  Am.  Dec.  206;  Konig- 
macher  v.  Kimmel,  1  Pen.  &  W.  (Pa.)  207,  21  Am.  Dec.  374 ;  King  v.  Talbot, 
40  N.  Y.  76 ;  Nance  v.  Nance,  1  S.  C.  209 ;  Jack's  Appeal,  94  Pa.  367 ;  Gary 
v.  Cannon,  38  N.  C.  64. 

is  Clark  v.  Garfield,  8  Allen  (Mass.)  427;  Henderson  v.  Lightner,  92  S.  W. 
945,  29  Ky.  Law  Rep.  301 ;  Stevens  v.  Meserve,  73  N.  H.  293,  61  Atl.  420,  111 
Am.  St.  Rep.  612. 

i«  Harvard  College  v.  Amory,  9  Pick.  (Mass.)  446. 

«  LAMAR  v.  MICOU,  112  U.  S.  452,  5  Sup.  Ct.  221,  28  L.  Ed.  751,  Cooley 


436  BIGHTS,  DUTIES,  AND  LIABILITIES  OF  GUARDIANS         (Ch.  12 


SAME— CARE  OF  REAL  ESTATE 

175.  A  guardian  must  lease  his  ward's  lands,  keep  the  buildings  in 
repair,  and  collect  the  rents.  But  he  has  no  authority  to 
allow  any  use  of  the  lands  which  would  amount  to  waste. 

The  guardian  may  lease  his  ward's  lands,  and  it  is  his  duty  to  do 
so,18  and  to  collect  the  rents  therefrom.19  His  authority  to  lease 
extends  only  for  the  term  of  the  ward's  minority,  and  a  lease  for  a 
longer  time  may  be  avoided  by  the  ward  on  becoming  of  age.20 
The  guardian's  control  over  the  ward's  land  extends  only  to  the 
use  of  the  same.  It  has  been  held  that  he  may  cut  growing  timber, 
when  such  use  does  not  amount  to  waste.21  But,  since  he  cannot 
dispose  of  his  ward's  real  estate  without  an  order  of  court,  his  lease 
of  mineral  lands  for  development,  being  a  grant  of  part  of  the  cor- 
pus of  the  land,  would  be  without  authority.22  If  the  guardian 
occupies  the  ward's  land  himself,  he  will  be  liable  for  rent,28  as 
well  as  for  any  depreciation  caused  by  improper  cultivation.24  He 
must  keep  all  buildings  in  repair,  if  the  income  of  the  estate  is  suffi- 

Cas.  Persons  and  Domestic  Relations,  230;  Id.,  114  U.  S.  218,  5  Sup.  Ct.  857, 
29  L.  Ed.  94. 

18  Rex  v.  Oakley,  10  East,  494 ;  Emerson  v.  Spicer,  46  N.  Y.  594 ;  Richard- 
son v.  Richardson,  49  Mo.  29;  Hughes'  Minors'  Appeal,  53  Pa.  500;  Wills' 
Appeal,  22  Pa.  329;  Palmer  v.  Cheseboro,  55  Conn.  114,  10  Atl.  508 ;  Walker 
v.  Thompson,  145  Ky.  597,  140  S.  W.  1045 ;  Rogers  v.  Harris  (Tex.  Civ.  App.) 
171  S.  W.  809 ;  Clark  v.  Burnside,  15  111.  62.  By  statute,  in  some  states,  he 
must  first  obtain  leave  of  court.  See  Alexander  v.  Buffington,  66  Iowa,'  360, 
23  N.  W.  754 ;  Gaines  v.  Gaines,  116  Ark.  508,  173  S.  W.  410,  Ann.  Gas.  1917A, 
1254 ;  Charles  v.  Witt,  88  Kan.  484,  129  Pac.  140. 

i»  Wills'  Appeal,  22  Pa.  329;  Taylor  v.  Kellogg,  103  Mo.  App.  258,  77  S.  W. 
130;  Bond  v.  Lockwood,  33  111.  212;  Griffin  v.  Collins,  125  Ga.  159,  53  S.  E. 
1004. 

20  Emerson  v.  Spicer,  46  N.  Y.  594;    Rogers  v.  Harris  (Tex  Civ.  App.)  171 
S.  W.  809 ;  Jackson  v.  O'Rorke,  71  Neb.  418,  98  N.  W.  1068.    Under  the  Ken- 
tucky statute  (Ky.  St.  1903,  §  2031)  a  guardian  may  lease  the  ward's  land  un- 
til the  latter  shall  arrive  at  full  age,  provided  the  lease  is  not  for  a  longer 
term  than  seven  years.    Cumberland  Pipe  Line  Co.  v.  Howard,  100  S.  W. 
270,  30  Ky.  Law  Rep.  1179. 

21  Thompson  v.  Boardman,  1  Vt.  367,  18  Am.  Dec.  684;   Bond  v.  Lockwood, 
33  111.  212 ;   Torry  v.  Black,  58  N.  Y.  185.     But  see  Bursirk  v.  Sanders,  70  W. 
Va.  363,  73  S.  E.  937 ;   Bettes  v.  Brower  (D.  O.)  184  Fed.  342. 

22  Stough ton's  Appeal,  88  Pa.  198;   Haskell  v.  Sutton,  53  W.  Va.  206,  44  S. 
E.  533.    And  see  Williams'  Case,  3  Bland  (Md.)  186. 

23  in  re  Otis,  34  Hun  (N.  Y.)  542;    Roystou  v.  Royston,  29  Ga.  82;    Willis 
v.  Fox,  25  Wls.  646 ;    In  re  Tyler,  40  Mo.  App.  378. 

2*  Willis  v.  Fox,  25  Wls.  646. 


§§  176-177)  MANAGEMENT    OF   WARD'S   ESTATE  437 

cient,  and  for  loss  of  rent  occurring  from  neglect  so  to  do,25  as  well 
as  for  injury  thereby  resulting  to  the  property,26  he  will  be  liable. 


SAME— SALE  OF  REAL  ESTATE 

176.  By  statute,  guardians,  on  obtaining  license  from  the  court,  are 

generally  empowered  to  sell  their  wards'  lands  to  pay 
debts,  or  for  future  maintenance  and  expenses,  where  there 
is  not  sufficient  personal  property,  and  in  some  states  for 
the  purpose  of  making  more  advantageous  investments. 

177.  Sales  without  license  from  the  court  are  void,  and  the  same  is 

true  where  the  court  granting  the  license  had  no  jurisdic- 
tion. Sales  made  in  pursuance  of  a  license  from  a  court 
having  jurisdiction,  though  irregular,  cannot  be  collater- 
ally attacked. 

Some  of  the  courts  have  held  that  a  court  of  chancery,  as  tne 
general  guardian  of  infants  within  its  jurisdiction,  has  an  inherent 
power  to  decree  a  sale  of  their  real  estate  whenever  it  is  for  their 
advantage  to  do  so,27  but  the  weight  of  authority  is  to  the  con- 
trary.28 In  most  states,  by  statute,  such  power  has  been  expressly 
conferred,  subject  to  certain  restrictions,  either  upon  the  court  of 
chancery,  or  upon  the  probate  or  other  similar  court.  In  some  states 
power  is  given  to  mortgage  the  estate,  under  certain  circumstanc- 
es.29 The  statutes  usually  authorize  sales  where  the  personal  prop- 
erty is  insufficient  to  pay  the  debts  of  the  ward's  estate,  and  to  pro- 
as Smith  v.  Gummere,  39  N.  J.  Eq.  27. 

26  Willis  v.  Fox,  25  Wis.  646.  • 

27  In  re  Salisbury,  3  Johns.  Ch.  (N.  Y.)  347;   Huger  v.  Huger,  3  Desaus.  (S. 
C.)  18 ;    Stapleton  v.  Langstaff,  Id.  22 ;   Williams  v.  Harrington,  33  N.  O.  616, 
53  Am,  Dec.  421;   Ex  parte  Jewett,  16  Ala.  409;    Goodman  v.  Winter,  64  Ala. 
410,  38  Am.  Rep.  13. 

28  Taylor  v.  Philips,  2  Ves.  Sr.  23 ;    Calvert  v.  Godfrey,  6  Beav.  97 ;   Field 
v.  Moore,  25  Law  J.  Ch.  66;   Rogers  v.  Dill,  6  Hill  (N.  Y.)  415;  Baker  v.  Loril- 
lard,  4  N.  Y.  257;    Williams'  Case,  3  Bland  (Md.)  186  (but  see  Roche  v.  Wa- 
ters, 72  Md.  264,  19  Atl.  535,  7  L.  R.  A.  533) ;   Pierce's  Adm'r  v.  Trigg's  Heirs^ 
10  Leigh  (Va.)  406 ;   Faulkner  v.  Davis,  18  Grat.  (Va.)  651,  98  Am.  Dec.  698. 

2»  U.  S.  Mortgage  Co.  v.  Sperry,  138  U.  S.  313,  11  Sup.  Ct  321,  34  L.  Ed. 
969.  On  order  of  court.  Bell  v.  Dingwell,  91  Neb.  699,  136  N.  W.  1128. 
The  Missouri  statute  (Rev.  St.  1899,  §  3504  [Ann.  St.  1906,  p.  2000] )  author- 
izes the  guardian  to  mortgage  the  ward's  realty  to  obtain  money  for  the  edu- 
cation and  maintenance  of  the  ward.  It  was  held,  in  Capen  v.  Garrison, 
193  Mo.  335,  92  S.  W.  368,  5  L.  R.  A.  (N.  S.)  838,  that  authority  to  raise  by 
mortgage  money  to  discharge  a  pre-existing  incumbrance  could  not  be  im- 
plied. But  see  Stokes  v.  Payne,  58  Miss.  614,  38  Am.  Rep.  340,  and  Davidson 


438  WGHTS,   DUTIES,  AND  LIABILITIES  OF  GUARDIANS          (Ch.  12 

vide  for  his  future  support  and  education  and  for  the  expenses  of 
caring  for  his  property,30  and  sometimes  sales  are  authorized  in 
order  to  make  more  advantageous  investments. 

The  contract  of  a  guardian  to  sell  his  ward's  real  estate,  or  a 
sale  and  conveyance  thereof  by  him,  without  an  order  of  court,  is 
an  absolute  nullity,  for  a  guardian  has  no  authority  to  dispose  of 
the  real  estate  of  his  ward,  unless  by  order  of  court.31  "An  in- 
strument conveying  land  of  minors,  signed  by  one  representing 
himself  to  be  their  guardian,  is  wholly  inoperative  without  the 
production  of  the  precedent  orders  of  a  court  of  competent  juris- 
diction in  the  premises,  and  therefore  inadmissible  as  evidence 
against  them.  Courts  will  not  presume  the  existence  of  authority 
to  act,  in  such  cases,  in  the  absence  of  all  proof  of  the  existence  of 
the  power,  and  its  loss  or  destruction,  even  after  the  lapse  of 
thirty  years."  32  An  order  of  the  court  being  necessary  to  author- 
ize a  guardian  to  sell  and  convey  his  ward's  real  estate,  it  follows 
that  the  sale  and  conveyance  must  be  in  strict  compliance  with 
the  order;  otherwise  it  is  just  as  much  without  authority  as  if 
there  were  no  order  of  court  at  all.88  Unless  it  is  otherwise  provid- 
ed by  statute,  the  court  cannot  authorize  a  natural  guardian,  as 
such,  to  dispose  of  his  ward's  real  estate.  The  guardian  must  be 
a  duly  appointed  guardian  of  the  ward's  estate,  and  he  must  have 
qualified  as  such.34  And,  a  fortiori,  the  court  cannot  authorize  a 
sale  by  some  third  person.85 

v.  Wampler,  29  Mont  61,  74  Pac.  82,  to  the  effect  that  the  power  to  sell  does 
not  include  the  power  to  mortgage. 

so  Faulkner  v.  Davis,  18  Grat.  (Va.)  651,  98  Am.  Dec.  698. 

si  Worth  v.  Curtis,  15  Me.  228;  Le  Roy  v.  Jacobosky,  136  N.  C.  443,  48  S. 
E.  796,  67  L.  R.  A.  977 ;  Gault  Lumber  Co.  v.  Pyles,  19  Okl.  445,  92  Pac.  173 ; 
Ayer  &  Lord  Tie  Co.  v.  Witherspoon's  Adm'r,  100  S.  W.  259,  30  Ky.  Law 
Rep.  1067;  Nichols  v.  Bryden,  86  Kan.  941,  122  Pac.  1119;  Touchy  v.  Gulf 
Land  Co.,  120  La.  545,  45  South.  434,  124  Am,  St.  Rep.  440;  Houlihan  v.  Fo- 
garty,  162  Mich.  492,  127  N.  W,  793;  Palmer  v.  Abrahams,  55  Wash.  352,  104 
Pac.  648;  Thacker  v.  Henderson,  63  Hart).  (N.  Y.)  271;  Morrison  v.  Kinstra, 
55  Miss.  71;  Gaylord  v.  Stebbins,  4  Kan.  42;  Downing  v.  Peabody,  56  Ga. 
40;  Ex  parte  Kirkman,  3  Head  (Tenn.)  517;  Mason  v.  Wait,  4  Scam.  (111.) 
127;  Wells  v.  Chaffin,  60  Ga.  677;  House  v.  Brent,  69  Tex.  27,  7  S.  W.  65; 
Shamleffer  v.  Mill  Co.,  18  Kan.  24 ;  Washabaugh  v.  Hall,  4  S.  D.  168,  56  N. 
W.  82. 

32  House  v.  Brent,  69  Tex.  27,  7  S.  W.  65. 

as  Cox  v.  Manvel,  56  Minn.  358,  57  N.  W.  1062.  As  to  purchase  by  guard- 
ian at  sale  of  ward's  property,  see  ante,  p.  419. 

34  Shanks  v.  Seamonds,  24  Iowa,  131,  92  Am.  Dec.  465 ;  Myers  v.  McGavock, 
39  Neb.  843,  58  N.  W.  522,  42  Am.  St.  Rep.  627. 

as  Paty  v.  Smith,  50  Cal.  153;  McKee  v.  Thomas,  9  Kan.  343, 


§§  176-177)  MANAGEMENT   OP   WARD'S   ESTATE  439 

A  sale  made  under  the  order  of  a  court  having  no  jurisdiction 
in  the  premises  is  an  absolute  nullity,  and  may  be  attacked  in  any 
way  and  at  any  time.36  But  when  the  court  has  jurisdiction  a  sale 
made  in  pursuance  of  its  license  cannot  be  attacked  collaterally  for 
irregularities.87  The  courts  do  not  agree  as  to  what  requirements 
of  the  statutes  are  jurisdictional.38  The  provision  of  the  statutes 
in  the  various  states  are  generally  uniform  in  requiring  the  guard- 
ian to  execute  a  special  bond  binding  him  to  make  the  sale  honest- 
ly, and  to  account  for  the  application  of  the  proceeds  in  accordance 
with  the  objects  for  which  the  license  was  granted.  In  most  states 
failure  to  give  the  bond  is  held  to  be  jurisdictional,  and  to  render  the 
sale  absolutely  void,39  but  in  some  states  it  is  held  that  such  a  fail- 
ure will  not  re.nder  the  sale  open  to  attack  in  a  collateral  proceed- 
ing.40 The  same  variance  exists  in  the  decisions  of  the  different 
states  as  to  the  necessity  of  giving  notice  to  the  ward.  By  tKe 
weight  of  authority,  such  notice  is  held  not  to  be  jurisdictional, 
on  the  theory  that  the  proceeding  is  purely  in  rem.41  The  court  of 

sa  Wells  v.  Steckleberg,  52  Neb.  597,  70  N.  W.  865,  66  Am.  St.  Rep.  529; 
Harris  v.  Hopkins,  166  Ky.  147,  179  S.  W.  14. 

s?  Beachy  v.  Shomber,  73  Kan.  62,  84  Pac.  547;  Fuller  v.  Hager,  47  Or. 
242,  83  Pac.  782,  114  Am.  St.  Rep.  916;  Field  v.  Peeples,  180  111.  376,  54  N. 
B.  304;  Davidson  v.  Hutchins,  112  Ind.  322,  13  N.  E.  106;  Sockey  v.  Win- 
stock,  43  Okl.  758,  144  Pac.  372 ;  Hubermann  v.  Evans,  46  Neb.  784,  65  N.  W. 
1045: 

3  s  Compare  Fuller  v.  Hager,  47  Or.  242,  83  Pac.  782,  114  Am.  St.  Rep.  916. 
and  Bachelor  v.  Korb,  58  Neb.  122,  78  N.  W.  485,  76  Am.  St.  Rep.  70,  as  to 
the  necessity  of  oath  by  the  guardian.  And  see  Fender  v.  Powers,  67  Mich. 
433,  35  N.  W.  80. 

3»  Williams  v.  Morton,  38  Me.  47,  61  Am.  Dec.  229;  Tracy  v.  Roberts,  88 
Me.  310,  34  Atl.  68,  51  Am.  St.  Rep.  394 ;  Blauser  v.  Diehl,  90  Pa.  350;  Stewart 
v.  Bailey,  28  Mich.  251;  McKeever  v.  Ball,  71  Ind.  398;  Phillips  v.  Spalding's 
Guardian,  102  S.  W.  1193,  31  Ky.  Law  Rep.  579;  Barnett  v.  Bull,  81  Ky.  127; 
Vanderburg  v.  Williamson,  52  Miss.  233. 

40  Arrowsmith  v.  Harmoning,  42  Ohio  St.  254 ;   Howbert  v.  Heyle,  47  Kan. 
58,  22  Pac.  116;   Watts  v.  Cook,  24  Kan.  278;   McKinney  v.  Jones,  55:  Wis.  39, 
11  N.  W.  606,  and  12  N.  W.  381 ;   Bunce  v.  Bunce,  59  Iowa,  533,  13  N.  W.  705. 
But  see  Weld  v.  Johnson  Mfg.  Co.,  84  Wis.  537,  54  N.  W.  335,  998. 

41  Mohr  v.  Manierre,  101  U.  S.  417,  25  L.  Ed.  1052;   Thaw  v.  Ritchie,  136 
U,  S.  519,  10  Sup.  Ct.  1037,  34  L.  Ed.  531;    Furr  v.  Burns,  124  Ga.  742,  58 
S.  E.  201;    Dexter  v.  Cranston,  41  Mich.  448,  2  N.  W.  674;    Williams  v.  Wil- 
liams, 18  Ind.  345;   Doe  v.  Jackson,  51  Ala.  514;   Myers  v.  McGavock,  39  Neb. 
843,  58  N.  W.  522,  526.  42  Am.  St.  Rep.  627 ;    Mohr  v.  Porter,  51  Wis.  487,  8 
N.  W.  364 ;   Mason  v.  Wait,  4  Scam.  (111.)  127 ;    Mulford  v.  Beveridge,  78  111. 
455;    Spring  v.  Kane,  86  111.  580.     But  see  Musgrave  v.  Conover,  85  111.  374. 
Contra,  Beacny  v.  Shomber,  73  Kan.  62,  84  Pac.  547 ;  Rule  v.  Broach,  58  Miss. 


440  RIGHTS,  DUTIES,  AND  LIABILITIES  OF  GUARDIANS          (Ch.  12 

a  county  where  a  ward  has  real  estate  may  license  a  foreign  guard- 
ian to  sell,  when  he  has  complied  with  the  state  laws  regarding 
foreign  guardians,  though  the  ward  is  a  nonresident.*2 


SAME— SALE  OF  PERSONAL  PROPERTY 

178.  A  guardian  may  sell  his  ward's  personal  property  without 
leave  of  court. 

It  is  within  the  scope  of  the  guardian's  authority  to  sell  his 
ward's  personal  property  without  first  obtaining  leave  of  court,48 
except  when  he  is  restricted  by  some  statutory  provision.4*  A 
guardian  ought  not  to  sell  his  ward's  personal  property  unless  the 
proceeds  are  needed  for  the  due  execution  of  the  trust,  or  unless 
he  can,  by  the  sale,  produce  some  advantage  to  the  estate.  Even 
where  he  sells  it  improperly,  however,  the  purchaser  will  acquire 
a  good  title,  if  there  is  innocence  and  good  faith  on  his  part.  "Hav- 
ing the  power  [to  sell]  without  obtaining  any  special  license  or 
authority,  a  title  under  him,  acquired  bona  fide  by  the  purchaser, 
will  be  good;  for  the  purchaser  cannot  know  whether  the  power 
has  been  executed  with  discretion  or  not,  and  the  estate  is  always 
supposed  to  be  secure  by  the  bond  given  by  the  guardian  for  the 
faithful  execution  of  his  trust,  and  discreet  management  of  the 
property."  *s 

552;  Rankin  v.  Miller,  43  Iowa,  11;  Molir  v.  Tulip,  40  Wis.  66  (overruled 
by  Mohr  v.  Porter,  supra) ;  Tracy  v.  Roberts,  88  Me.  310,  34  Atl.  68,  51  Am. 
St.  Rep.  394. 

42  Menage  T.  Jones,  40  Minn.  254,  41  N.  W.  972 ;    West  Duluth  Land  Co. 
v.  Kurtz,  45  Minn.  380,  47  N.  W.  1134;    Myers  v.  McGavock,  39  Neb.  843,  58 
N.  W.  522,  42  Am  St.  Rep.  627;    Bouldln  v.  Miller  (Tex.  Civ.  App.)  26  S. 
W.  133. 

43  2  Kent,  Comm.  228;    Field  >v.  Schieffelin,  7  Johns.  Ch.  (N.  Y.)  150,  11 
Am.  Dec.  441 ;   Nashville  Lumber  Co.  v.  Barefield,  93  Ark.  253,  124  S.  W.  758, 
20  Ann.  Cas.  968;  Cabbie  v.  Cabbie,  111  App.  Div.  426,  97  N.  Y.  Supp.  773 ;   El- 
lis v.  Proprietors,  2  Pick.  (Mass.)  243;   Hunter  v.  Lawrence's  Adm'r,  11  Grat. 
(Va.)  Ill,  62  Am.  Dec.  640 ;    Humphrey  v.  Buisson,  19  Minn.  221  (Gil.  182)  ; 
Wallace  v.  Holmes,  9  Blatchf.  67,  Fed.  Cas.  No.  17,100.    The  rule  is  otherwise 
in  some  states  as  to  real  estate  mortgages.    McDuflie  v.  Mclntyre,  11  S.  C. 
551,  32  Am.  Rep.  500. 

44  Hendrix  v.  Richards,  57  Neb.  794,  78  N.  W.  378.     And  see  Gentry  v. 
Benrss,  82  Neb.  787,  118  N.  W.  1077,  construing  the  Oklahoma  statute. 

4 s  Ellis  v.  Proprietors,  2  Pick.  (Mass.)  243.    And  see  the  other  cases  above 
cited. 


§  180)  FOREIGN   GUARDIANS  441 


SAME— POWER  TO  EXECUTE  INSTRUMENTS 

179.  Guardians  can  execute  all  instruments  which  are  necessary  in 

the  scope  of  their  trust,  but  cannot  bind  the  ward  or  his 
estate  by  covenants. 

Guardians  have  authority  to  execute  all  instruments  which  are 
necessary,  within  the  scope  of  the  trust.  Thus,  when  a  guardian 
has  been  authorized  by  court  to  sell  real  estate,  he  may  execute 
a  conveyance  of  the  same.46  His  authority  is  limited,  however, 
to  the  transfer  of  the  title.  He  cannot  bind  his  ward  by  covenants, 
but  will  be  personally  bound  by  any  covenants  therein  contained.47 
A  guardian,  on  receiving  payment  of  a  mortgage,  has  authority 
to  discharge  it  of  record.48  He  can  make  a  binding  contract  for 
the  extension  of  the  mortgage,49  or  assign  it,50  and,  on  breach  of 
condition,  may  foreclose.51 

FOREIGN  GUARDIANS 

180.  A    guardian's    authority    is    strictly    territorial,    but    foreign 

guardians  are  recognized,  in  most  states,  as  a  matter  of 
comity,  on  compliance  with  certain  statutory  regulations. 

The  authority  of  a  guardian  is  confined  to  the  county  or  state 
of  his  appointment.  His  rights  are  strictly  territorial,  and  unless 
his  appointment  is  recognized,  as  a  matter  of  comity,  by  a  sister 
state  or  foreign  country,  he  has  no  extraterritorial  rights  in  re- 

*  e  Whiting  v.  Dewey,  15  Pick.  (Mass.)  428;    State  v.  Clark,  28  Ind.  138; 
Byrd  v.  Turpin,  62  Ga.  591 ;   Young  v.  Lorain,  11  111.  625,  52  Am.  Dec.  463. 

47  Whiting  v.  Dewey,  15  Pick.  (Mass.)  428;  Young  v.  Lorain,  11  111.  625, 
52  Am.  Dec.  463;  Holyoke  v.  Clark,  54  N.  H.  578.  But  no  implied  covenants 
arise  in  a  lease  by  a  guardian.  Webster  v.  Conley,  46  111.  13,  92  Am.  Dec.  234. 

*  s  Chapman  v.  Tibbits,  33  N.  Y.  289;    Riddell  v.  Vizard,  35  La.  Ann.  310; 
Perkins  v.  Dyer,  6  Ga.  401.    Contra,  Freiberg  v.  De  Lamar,  7  Tex.  Civ.  App. 
263,  27  S.  W.  151.     But  a  mortgage  given  by  a  guardian  to  his  ward  cannot 
be  satisfied  by  the  guardian  without  authority  of  court,  and  payment  of  the 
debt     Jennings  v.  Jennings,  104  Cal.  150,  37  Pac.  704. 

49  Willick  v.  Taggart,  17  Hun  (N.  Y.)  511. 

so  Field  v.  Schieffelin,  7  Johns.  Ch.  (N.  Y.)  150,  11  Am.  Dec.  441;  Humphrey 
v.  Buisson,  19  Minn.  221  (Gil.  182).  Contra,  Mack  v.  Brammer,  28  Ohio  St. 
508. 

01  Taylor  v.  Hite,  61  Mo.  142.  A  guardian  has  authority  to  redeem  from  a 
foreclosure.  Marvin  v.  Schilling,  12  Mich.  356. 


442  RIGHTS,   DUTIES,   AND  LIABILITIES  OF  GUARDIANS          (Ch.  12 

gard  to  the  person  or  property  of  his  ward.62  Thus  he  cannot  as 
such  maintain  an  action  in  a  state  other  than  the  one  in  which  he 
was  appointed,  unless  authorized  so  to  do  by  the  laws  of  the  state 
in  which  the  suit  is  brought.08  The  authority  of  a  foreign  guard- 
ian is  sometimes  recognized  as  a  matter  of  comity,54  and  if  a  new 
appointment  is  required  the  claims  of  the  foreign  guardian  to  the 
office  will  generally  be  respected.08  In  many  states  there  are  stat- 
utory regulations  authorizing  a  foreign  guardian  to  act  on  comply- 
ing with  certain  regulations,06  such  as  filing  a  certified  copy  of 
his  appointment,07  or  the  giving  of  a  bond,  and  in  some  states  he 
must  first  take  out  ancillary  letters  of  guardianship.88  An  ancillary 
guardian  is  not  bound  to  account  in  the  foreign  state  for  funds 
received  there,  but  should  render  his  account  to  the  court  of  his 
original  appointment.09 

62  Story,  Confl.  Laws,  §§  492-529 ;  Whart.  Confl.  Laws,  §§  209-268 ;  Ex  parte 
Watkins,  2  Ves.  Sr.  470 ;  Hoyt  v.  Sprague,  103  U.  S.  613,  2T5  L.  Ed.  585 ;  Rice's 
Case,  42  Mich.  528,  4  N.  W.  284 ;  Weller  v.  Suggett,  3  Redf .  Sur.  (N.  T.)  249 ; 
McLoskey  v.  Reid,  4  Bradf.  Sur.  (N.  Y.)  334 ;  Rogers  v.  McLean,  31  Barb.  (N. 
Y.)  304  (but  see  Freund  v.  Washburn,  17  Hun  [N.  Y.]  543) ;  Kraft  v.  Wickey, 
4  Gill  &  J.  (Md.)  332,  23  Am.  Dec.  569;  Leonard  v.  Putnam,  51  N.  H.  247,  12 
Am.  Rep.  106 ;  Grist  v.  Forehand,  36  Miss.  69 ;  Burnet  v.  Burnet,  12  B.  Mon. 
(Ky.)  323;  Hoffman  v.  Watkins,  61  Tex.  Civ.  App.  522,  130  S.  W.  625;  In 
re  Nickals,  21  Nev.  462,  34  Pac.  250.  A  settlement  by  a  foreign  guardian 
of  a  claim  for  wrongful  death  of  the  father  of  his  ward  is  no  nar  to  a  suit 
in  Illinois,  as  the  authority  of  the  guardian  is  local.  Devine  v.  American 
Posting  Service,  174  111.  App.  403. 

53  Pulver  v.  Leonard  (C.  C.)  176  Fed.  586;  In  re  Kingsley  (D.  C.)  160  Fed. 
275. 

S*  Savini  v.  Lousada,  22  Law  T.  (N.  S.)  61 ;  Nugent  v.  Vetzera,  L.  R.  2  Eq. 
704;  Stuart  v.  Bute,  9  H.  L.  Cas.  440;  In  re  Crosswell's  Petition,  28  R.  I.  137, 
66  Atl.  55,  13  Ann.  Cas.  874;  Curtis  v.  Union  Homestead  Ass'n,  126  La.  959, 
58  South.  63;  Woodworth  v.  Spring,  4  Allen  (Mass.)  321;  Earl  v.  Dresser,  30 
Ind.  11,  95  Am.  Dec.  660 ;  Marts  v.  Brown,  56  Ind.  386 ;  Wells  v.  Andrews.  60 
Miss.  373 ;  Sims  v.  Renwick,  25  Ga.  58. 

53  In  re  Crosby,  42  Wash.  366,  85  Pac.  1 ;  Grimmett  v.  Witherington,  16  Ark. 
377,  63  Am.  Dec.  66 ;  Earl  v.  Dresser,  30  Ind.  11,  95  Am.  Dec.  660. 

8«  Rice's  Case,  42  Mich.  528,  4  N.  W.  284;  Hoyt  v.  Sprague,  103  U.  S.  613, 
26  L.  Ed.  585;  Watt  v.  Allgood,  62  Miss.  38. 

67  Pulver  v.  Leonard  (C.  O.)  176  Fed.  586. 

68  EX  parte  Huffman  (C.  C.)   167  Fed.  422. 

6»  Smoot  v.  Bell,  3  Cranch  C.  C.  343,  Fed.  Cas.  No.  13132. 


§§  181-183)  INVENTORY  AND  ACCOUNTS  443 

INVENTORY  AND  ACCOUNTS 

181.  Guardians  must  file  an  inventory  of  the  estate,  and  account 

from  time  to  time,  and,  at  the  expiration  of  the  guardian- 
ship, must  render  a  final  account. 

182.  A  final  account,  when  settled  and  allowed  by  the  court,  can 

only  be  questioned  in  a  direct  proceeding  on  the  ground  of 
fraud  or  mistake. 

183.  When  the  same  person  is  executor  or  administrator  and  guard- 

ian, he  is  liable  primarily,  as  executor  or  administrator,  for 
funds  in  his  hands  due  his  ward  as  legatee  or  distributee, 
but  becomes  liable  as  guardian  on  charging  himself  in  that 
capacity. 

It  is  the  duty  of  the  guardian  to  file  an  inventory  of  the  estate 
and  to  render  accounts  from  time  to  time,  usually  annually.80 
And  e.ven  one  who,  though  not  legally  appointed  as  guardian,  has 
acted  as  such,  may  be  required  to  account,  as  guardian  de  facto, 
by  a  court  of  equity.61  Neither  the  inventory 62  nor  such  ac- 
counts 6S  are  conclusive  as  to  the  facts  therein  set  forth,  but  are 
prima  facie  correct,  as  against  the  guardian  and  his  sureties,64  or 
against  any  one  else  who  disputes  their  correctness.65  At  the 
expiration  of  his  term  of  office  the  guardian  must,  in  accordance 
with  his  general  duty,  as  well,  usually,  as  by  the  express  provisions 
of  his  bond,  render  a  final  account,  and  he  may  be  brought  into 

eo  Alcon  v.  Koons,  42  Ind.  App.  537,  82  N.  E.  92;  Beem  v.  Mays,  79  Or.  247, 
152  Pac.  103;  Yeager's  Appeal,  34  Pa.  173.  See  the  statutes  of  the  various 
states.  The  duty  to  account  is  a  continuing  one  and  on  the  death  of  the 
guardian  devolves  on  his  administrator.  Nelson  v.  Cowling,  89  Ark.  334,  116 
S.  W.  890.  But  see  Miller  v.  Ash,  156  Cal.  544,  105  Pac.  600. 

si  Campbell  v.  O'Neill,  69  W.  Va.  459,  72  S.  B.  732. 

62  Bourne  v.  Maybin,  3  Woods,  724,  Fed.  Cas.  No.  1,700 ;    State  v.  Stewart, 
36  Miss.  652;    Green  v.  Johnson,  3  Gill  &  J.  (Md.)  389. 

63  Douglas'  Appeal,  82  Pa.  169;   Prindle  v.  Holcomb,  45  Conn.  Ill;    Guard- 
ianship of  Cardwell,  55  Cal.  137;    Diaper  v.  Anderson,  37  Barb.  (N.  Y.)  168; 
France  v.  Shockey,  92  Ark.  41,  121  S.  W.  1056;    Walker  v.  Thompson,  145 
Ky.  597,  140  S.  W.  1045. 

64  Davis  v.  Combs,  38  N.  J.  Eq.  473 ;    State  v.  Jones,  89  Mo.  470,  1  S.  W. 
355;    Bond  v.  Lockwood,  33  111.  212;    State  v.  Stewart,  36  Miss.  652;   Sanders 
v.  Forgasson,  3  Baxt.  (Tonn.)  249 ;   In  re  Heath's  Estate,  58  Iowa,  36,  11  N.  W. 
723;     and  cases  cited  in  notes  62  and  63,  supra. 

«5  Coggins  v.  Fly  the,  113  N.  C.  102,  18  S.  E.  96. 


444  RIGHTS,   DUTIES,  AND   LIABILITIES  OF  GUARDIANS          (Ch.  12 

court  for  that  purpose.86  This  account,  when  settled  and  allowed 
by  the  court,  is,  by  the  weight  of  authority,  conclusive,  as  against 
all  parties,'7  when  attacked  collaterally,  and  can  only  be  ques- 
tioned in  a  direct  proceeding  brought  for  that  purpose,  on  the 
•ground  of  fraud  or  mistake.68 

When  a  person  is  both  executor  or  administrator  and  guardian, 
and  receives  funds  to  which  his  ward  is  entitled  as  legatee  or  dis- 
tributee, he  is  not  liable  in  both  capacities  at  once.69  He  must 
primarily  account  for  such  funds  as  executor  or  administrator,  and 
remains  liable  as  such  until  a  settlement  in  such  capacity,  in  which 
he  is  credited  with  the  funds  as  executor  or  administrator,  and 
charged  as  guardian.70  But  after  the  expiration  of  a  reasonable 

««  Gilbert  v.  Guptill,  34  111.  112;  Succession  of  Guillebert,  117  La.  372,  41 
South.  654;  Miller  v.  Ash,  156  Cal.  544,  105  Pac.  600;  National  Surety  Co. 
v.  State,  181  Ind.  54,  103  N.  E.  105 ;  In  re  Moore,  112  Me.  119,  90  Atl.  1088,. 
Ann.  Cas.  1917A,  645 ;  Dunn  v.  Clinghan,  93  Miss.  310,  47  South.  503 ;  Whit- 
fleld  v.  Burrell,  54  Tex.  Civ.  App.  567,  118  S.  W.  153;  Sroufe  v.  Sroufe,  74 
Wash.  639,  134  Pac.  471;  Walls'  Appeal,  104  Pa.  14;  Say's  Ex'rs  v.  Barnes, 
4  Serg.  &  R.  (Pa.)  112,  8  Am.  Dec.  679;  Wade  v.  Lobdell,  4  Cush.  (Mass.) 
510;  Stark  v.  Gamble,  43  N.  H.  465.  Where  the  ward  dies  before  settlement, 
the  accounting  must  be  with  the  ward's  representative.  Livermore  v.  Ratti, 
150  Cal.  458,  89  Pac.  327.  For  the  purposes  of  a  settlement  a  guardianship 
is  deemed  to  continue  after  it  has  in  law  ceased.  Mitchell  v.  Penny,  66  W. 
Va.  660,  66  S.  E.  1003,  26  L.  R.  A.  (N.  S.)  788,  135  Am.  St.  Rep.  104«. 

eTAllman  v.  Owen,  31  Ala.  167 ;  McCleary  v.  Menke,  109  111.  294 ;  Candy  v. 
Hanmore,  76  Ind.  125;  American  Bonding  Co.  v.  People,  46  Colo.  394,  104 
Pac.  81 ;  Title  Guaranty  &  Surety  Co.  v.  Slinker,  35  Okl.  128,  128  Pac.  696 ; 
Id.,  35  Okl.  153,  128  Pac.  698 ;  In  re  Pleasonton's  Estate,  232  Pa.  381,  81  Atl. 
420;  Whitfleld  v.  Burrell,  54  Tex.  Civ.  App.  567,  118  S.  W.  153;  State 
v.  Leslie,  83  Mo.  60;  King  v.  King,  40  Iowa,  120;  Brodrib  v.  Brodrib,  56- 
Cal.  563.  Contra,  Henley  v.  Robb,  86  Tenn.  474,  7  S.  W.  190;  Campbell  v.  Wil- 
liams, 3  T.  B.  Mon.  (Ky.)  122;  Bourne  v.  Maybin,  3  Woods,  724,  Fed.  Cas.  No. 
1,700 ;  State  v.  Miller,  44  Mo.  App.  118. 

«8Cummings  v.  Cummings,  128  Mass.  562;  State  v.  Leslie,  83  Mo.  60; 
American  Bonding  Co.  v.  People,  46  Colo.  394,  104  Pac.  81 ;  Charles  v.  Witt, 
88  Kan.  484,  129  Pac.  140;  Ackermann  v.  Haumueller,  148  Mo.  App.  400, 
128  S.  W.  51;  Id.,  148  Mo.  App.  427,  128  S.  W.  56;  Reed  v.  Ryburn,  23  Ark. 
47;  McDow  v.  Brown,  2  S.  C.  95;  Yeager's  Appeal,  34  Pa.  173. 

09  Wren  v.  Gayden,  1  How.  (Miss.)  365.  But,  in  case  of  his  failure  to  duly 
collect  such  funds  as  guardian,  the  sureties  on  his  bond  as  guardian  may  also 
become  liable  therefor.  Harris  v.  Harrison,  78  N.  C.  202. 

fo'Conkey  v.  Dickinson,  13  Mete.  (Mass.)  51;  Burton  v.  Tunnell,  4  Har. 
(Del.)  424;  Alston  v.  Munford,  1  Brock.  266,  Fed.  Cas.  No.  267;  Weaver  v. 
Thornton,  63  Ga.  655.  His  liability  as  guardian  has  been  held  to  arise  from 
the  time  he  charged  himself  as  such,  without  obtaining  any  order  of  court, 
or  making  a  formal  settlement.  In  re  Scott's  Account,  36  Yt.  297.  And  see 
In  re  Brown,  72  Hun,  160,  25  N.  Y.  Supp.  694 ;  State  v.  Branch,  112  Mo.  661, 
20  S.  W.  693.  Where  a  legacy  is  payable  at  a  future  date,  the  executor  can- 


§  184)  COMPENSATION   OF   GUARDIAN  445 

time,  sometimes  determined  by  the  time  limited  by  law  for  the 
settlement  of  estates,  it  will  be  presumed  that  he  has  transferred 
the  funds,  and  holds  them  in  his  capacity  as  guardian.71  Such 
presumption  may  be  rebutted  where  the  question  arises  as  to  lia- 
bility on  his  executor's  or  administrator's  bond.72  The  intention 
to  charge  himself  as  guardian  may  be  inferred  from  his  ,acts  in 
regard  to  the  property  in  his  hands.78 


COMPENSATION   OF  GUARDIAN 


184.  When  a  guardian  has  faithfully  executed  his  trust,  but  not 
otherwise,  he  will  be  allowed  compensation  for  his  serv- 
ices, in  the  settlement  of  his  accounts. 

In  England  guardians  receive  no  compensation  for  their  services, 
but  in  this  country  the  rule  is  otherwise.  The  rules  are  different 
in  the  various  states,  but  ordinarily  guardians  receive  a  certain 
percentage  or  commission  on  receipts  and  disbursements,  the  rate 
being  established  either  by  statute  or  by  the  court.  In  some  states 
no  regular  percentage  is  established,  but  the  court  allows  what  is 
reasonable.74  For  any  specific  services  rendered  by  the  guardian, 
apart  from  the  general  management  of  the  estate,  a  reasonable 
allowance  in  addition  to  his  percentage  will  ordinarily  be  made,  to 
be  determined  by  the  importance  and  difficulty  of  the  services.75 

not  render  the  sureties  on  his  bond  as  guardian  liable  by  prematurely  charging 
himself  as  guardian.  Swope  v.  Chambers,  2  Grat.  (Va.)  319. 

71  Watkins'  Adm'rs  v.  State,  2  Gill  &  J.  (Md.)  220;  Karr's  Adm'r  v.  Karr, 
6  Dana  (Ky.)  3;  Townsend  v.  Tallant,  33  Cal.  45,  91  Am.  Dec.  617;  In  re 
Wood,  71  Mo.  623 ;  Johnson  v.  Johnson,  2  Hill,  Eq.  (S.  C.)  277,  29  Am.  Dec. 
72 ;  Wilson  v.  Wilson,  17  Ohio  St.  150,  91  Am.  Dec.  125. 

7  2  Wilson  v.  Wilson,  17  Ohio  St.  150,  91  Ajn.  Dec.  125. 

78  Drane  v.  Bayliss,  1  Humph.  (Tenn.)  174;  Adams  v.  Gleaves,  10  Lea 
(Tenn.)  367;  Swope  v.  Chambers,  2  Grat.  (Va.)  319;  Tittman  v.  Green,  108 
Mo.  22,  18  S.  W.  885. 

T*  May  v.  May,  109  Mass.  252;  McElhenny's  Appeal,  46  Pa.  347;  In  re 
Roberts,  3  Johns.  Ch.  (N.  Y.)  43;  State  v.  Foy,  65  N.  C.  265;  Hughes  v. 
Smith,  2  Dana  (Ky.)  251;  France  v.  Shockey,  92  Ark.  41,  121  S.  W.  1056; 
Bell  v.  Bell's  Guardian,  167  Ky.  430,  180  S.  W.  803 ;  Holcombe  v.  Holcombe's 
Ex'rs,  13  N.  J.  Eq.  415 ;  Knowlton  v.  Bradley,  17  N.  H.  458,  43  Am.  Dec.  609. 
And  see  Trustee  of  Elizabeth  Speers'  Memorial  Hospital  v.  Makibben's  Guard- 
ian, 126  Ky.  17,  102  S.  W.  820.  Commissions  will  be  granted  in  accordance 
.with  the  law  in  force  at  the  time  of  the  accounting.  In  re  Chenery's  Estate, 
89  Misc.  Rep.  680,  152  N.  Y.  Supp.  312. 

i  e  May  v.  May,  109  Mass.  252;    McElhenny's  Appeal,  46  Pa.  347;    Spath's 


446  RIGHTS,   DUTIES,  AND   LIABILITIES  OF  GUARDIANS          (Ch.  12 

But  compensation  in  the  nature  of  a  commission  on  reinvestments 
of  money  and  repairs  has  been  refused  on  the  ground  that  it  is  in 
conflict  with  the  true  nature  and  purpose  of  the  trust  that  the 
guardian  should  be  a  gainer  by  increasing  the  amount  of  expendi- 
tures through  frequent  changes  of  investments,  or  by  repairs.™ 
Commissions  are  allowed  a  guardian  as  compensation  for  the  per- 
formance of  his  dujty,  and  when  he  has  failed  in  such  performance 
the  court  will  not  allow  him  any  compensation  at  all.71 


SETTLEMENTS  OUT   OF  COURT— GIFTS   FROM  WARD 

185.  The  final  settlement  of  a  guardian's  account,  made  with  the 

ward  out  of  court,  whereby  the  guardian  gains  any  ad- 
vantage, will  be  set  aside,  unless  it  appears  that  the  ward 
has  given  his  deliberate,  intelligent,  voluntary  acquies- 
cence, or  is  guilty  of  laches  in  asserting  his  rights. 

186.  Gifts  from  a  ward  to  his  guardian,  made  during  the  guard- 

ianship, or  shortly  after  its  termination,  are  presumed  to 
have  been  made  under  undue  influence;  and,  to  uphold 
them,  it  must  be  shown  that  they  were  made  voluntarily 
and  understandingly. 

Any  arrangement  entered  into  between  a  guardian  and  his  ward, 
'  whereby  the  guardian  gains  an  advantage,  is  looked  upon  with 
great  suspicion  by  the  court;  and,  if  such  an  arrangement  is  to 
stand,  it  is  incumbent  on  the  guardian  to  show  that  he  has  dealt 
with  his  ward  exactly  as  a  stranger  would  have  done  who  was  with- 
out the  knowledge  of  the  ward's  affairs  possessed  by  him,  and  that 
he  has  not  exercised  any  influence  which  he  may  have  acquired 
over  the  mind  of  his  ward,  to  his  own  advantage,  and  that  he  has 

Estates,  144  Pa.  383,  22  Atl.  749;    Anderson  v.  Silcox,  82  S.  C.  109,  63  S.  EL 
li's;    Emerson,  Appellant,  32  Me.  159;    Evarts  v.  Nason,  11  Vt.  122. 

76  May  v.  May,  109  Mass.  252. 

"State  v.  Richardson,  29  Mo.  App.  595;  In  re  Ward,  49  Misc.  Rep.  181, 
98  N.  Y.  Supp.  923;  Hescht  v.  Calvert,  32  W.  Va.  215,  9  S.  E.  87;  Topping  v. 
Windley,  99  N.  C.  4,  5  S.  E.  14;  In  re  Wolfe's  Estate  (Sur.)  2  N.  Y.  Supp. 
494;  Donlon  v.  Maley,  60  Ind.  App.  25,  110  N.  E.  92;  In  re  Moore,  112  Me. 
119,  90  Atl.  1088,  Ann.  Cas.  1917A,  645 ;  In  re  Allard's  Guardianship,  49  Mont 
219,  141  Pac.  661;  Pyatt  v.  Pyatt,  44  N.  J:  Eq.  491,  15  Atl.  421;  Appeal  of 
Fish  (Pa.)  7  AtL  222 ;  State  v.  Gilmore,  50  Mo.  App.  353.  Mere  mistakes  in 
keeping  the  accounts  of  the  estate,  where  no  fraud  is  shown  will  not  forfeit' 
the  right  to  compensation,  Rogers  v.  Lindsay,  89  Kan.  417,  131  Pac.  150. 


§§  185-186)  SETTLEMENTS   OUT   OP   COURT  447 

brought  everything  to  his  ward's  knowledge  which  he  himself 
knew.78  The  final  settlement  of  the  guardian's  account,  made  out 
of  court,  or  his  purchase  of  the  ward's  property  shortly  after  the 
termination  of  the  guardianship,  or  the  release  by  the  ward  of 
any  claims  against  the  guardian,  will  be  scrutinized  with  the  great- 
est care  by  the  courts.79  "In  a  court  of  law,  the  moment  of  eman- 
cipation from  legal  pupilage  is  the  moment  of  absolute  power  and 
unlimited  capacity.  This  court  extends  its  watchfulness  further, 
and  requires  that  a  discharge  to  the  guardian  shall  not  be  precipi- 
tated; that  ample  time  shall  be  allowed  for  consultation  and  in- 
quiry ;  that  there  shall  be  a  full  exhibition  of  the  estate,  and  of  its 
administration.  And  it  requires  that  a  guardian  who  settles  his 
account  in  secret  shall  be  prepared  to  prove  that  he  has  fully  com- 
plied with  these  requisitions,  unless  he  can  shelter  himself  under 
a  positive  ratification — a  deliberate,  intelligent,  voluntary  acquies- 
cence— or  such  a  flow  of  time  as  will  induce  the  court  to  refuse  its 
interposition."  80 


7  s  Hall  v.  Turner's  Estate,  78  Vt.  62,  61  Atl.  763;  Harrison  v.  Harrison, 
21  N.  M.  372,  155  Pac.  356,  L.  R.  A.  1916E,  854 ;  Hunter  v.  Atkins,  3  Mylne 
&  K.  113,  135;  Revett  v.  Harvey,  1  Sim.  &  S.  502;  Hylton  v.  Hylton,  2  Ves. 
Sr.  547;  Allfrey  v.  Allfrey,  11  Jur.  981.  The  burden  is  on  the  guardian, 
though  he  is  the  parent  of  the  ward  and  the  settlement  is  made  a  few  days 
after  the  ward  arrived  at  full  age.  Baum  v.  Hartmann,  226  111.  160,  80  N. 
E.  711,  117  Am.  St.  Rep.  246,  reversing  122  111.  App.  444. 

TO  Griffin  v.  Collins,  122  Ga.  102,  49  S.  E.  827,  holding  that  a  receipt  by  a 
ward  acquitting  the  guardian  in  full  of  "all  claims  against  him  is  not  valid  if 
signed  before  the  termination  of  guardianship.  See,  also,  Fidelity  Trust  Co. 
v.  Butler,  91  S.  W.  676,  28  Ky.  Law  Rep.  1268 ;  Wilson  v.  Fidelity  Trust  Co. 
(Ky.)  97  S.  W.  753 ;  National  Surety  Co.  v.  State,  181  Ind.  54,  103  N.  E.  105. 

so  Fish  v.  Miller,  Hoff.  Ch.  (N.  Y.)  267.  And  see  Voltz  v.  Voltz,  75  Ala. 
566;  Eberts  v.  Eberts,  55  Pa.  110;  Hall  v.  Cone,  5  Day  (Conn.)  543;  Stark 
v.  Gamble,  43  N.  H.  465;  Williams  v.  Powell,  36  N.  C.  460;  Harris  v.  Car- 
starphen,  69  N.  C.  416;  Carter  v.  Tice,  120  111.  277,  11  N.  E.  529;  Richard- 
son v.  Linney,  7  B.  Mon.  (Ky.)  571 ;  Powell  v.  Powell,  52  Mich.  432,  18  N.  W. 
203 ;  Line  v.  Lawder,  122  Ind.  548,  23  N.  E.  758 ;  McConkey  v.  Cockey,  69  Md. 
286,  14  Ati.  465.  And  see  Wilson  v.  Fidelity  Trust  Co.,  97  S.  W.  753,  30  Ky. 
Law  Rep.  263.  The  ward  cannot  set  aside  a  conveyance  made  by  him  after 
attaining  his  majority,  without  restoring  the  consideration  received  from  his 
guardian.  Wickiser  v.  Cook,  85  111.  68.  But  the  tender  of  the  amount  re- 
ceived by  him  is  riot  a  condition  precedent.  Rist  v.  Hartner,  44  La.  Ann.  430, 
10  South.  759.  The  ward  must  act  promptly  in  avoiding  a  gift  or  conveyance 
to  his  guardian,  or  he  may  be  barred  by  his  laches.  Fielder  v.  Harbison,  93 
Ky.  482,  20  S.  W.  508 ;  Roth's  Estate,  150  Pa.  261,  24  Atl.  685;  In  re  Alexan- 
der's Estate,  156  Pa.  368,  27  Atl.  18 ;  Lataillade  v.  Orena,  91  Cal.  565,  27  Pac. 
924,  25  Am.  St.  Rep.  219 ;  Ela  v.  Ela,  84  Me.  423,  24  Atl.  893. 


448  RIGHTS,  DUTIES,  AND  LIABILITIES  OF  GUARDIANS          (Ch.  12 

Equity  will  not  permit  transactions  between  guardian  and  ward 
to  stand,  though  they  occur  after  majority,  if  the  intervening  pe- 
riod is  short,  unless  the  fullest  deliberation  by  the  ward  and  the 
utmost  good  faith  by  the  guardian  is  shown,  and  a  guardian  can- 
not procure  an  acknowledgment  of  settlement  from  his  ward  short- 
ly after  his  majority  without  a  full  disclosure  of  every  fact  neces- 
sary to  inform  the  ward  of  the  true  condition  of  the  accounts.81 

While  every  reasonable  intendment  will  be  made,  in  a  settle- 
ment, in  favor  of  the  ward,  particularly  if  he  has  made  allowances 
in  the  guardian's  favor,  yet,  if  the  influence  of  the  guardian  has 
entirely  ceased,  such  settlement  and  the  release  of  the  guardian 
will  be  sustained,  when  made  voluntarily  on  the  part  of  the  ward, 
and  without  concealment  or  misrepresentation  by  the  guardian.82 
A  settlement  of  a  guardian's  final  account  in  a  probate  court,  or 
other  similar  court  of  statutory  jurisdiction,  may  likewise  be  set 
aside  in  equity  on  proof  of  actual  or  constructive  fraud.88 

Gifts  from  a  ward  to  his  guardian,  made  during  the  continuance 
of  the  guardianship,  are  presumed  to  have  been  induced  by  undue 
influence,  and  will  be  set  aside  unless  they  are  shown  to  have  been 
entirely  voluntary,  and  to  have  been  clearly  understood  by  the 
ward.8*  In  a  leading  Vermont  case  85  it  was  held  that  mere  lapse 
of  time  is  not  sufficient  to  prove  a  ratification  of  the  gift,  unless  it 
appears  also  that  the  ward  knew  that  the  gift  was  invalid  and  could 
be  set  aside,  and  knowing  these  facts,  had  consented  for  an  unrea- 
sonable time  that  the  gift  might  stand  unquestioned,  and  that  such 
consent  was  the  result  of  his  free  and  intelligent  choice,  and  not  the 
result  of  the  pressure  and  influence  arising  out  of  the  confidential 
relations  existing  between  the  parties.  On  the  same  principle,  a 
gift  or  conveyance  to  a  guardian  made  by  the  ward  shortly  after 


si  Willis  v.  Rice,  157  Aln.  252,  48  South.  397,  131  Am.  St.  Rep.  55. 

sz  Kirby  v.  Taylor,  6  Johns.  Ch.  (N.  T.)  242 ;  Hawkins'  Appeal,  32  Pa.  263 ; 
Smith  v.  Davis,  49  Md.  470;  Davenport  v.  Olmstead,  43  Conn.  67;  Douglass 
v.  Ferris,  138  N.  Y.  192,  33  N.  E.  1041,  34  Am.  St.  Rep.  435;  Condon  v. 
Churchman,  32  111.  App.  317 ;  Davis  v.  Hagler,  40  Kan.  187,  19  Pac.  628.  But 
a  ward  will  not  be  bound  by  a  ratification  of  his  guardian's  accounts  made 
In  ignorance  of  material  facts.  Long  v.  Long,  142  N.  Y.  545,  37  N.  E.  486. 

as  Carter  v.  Tice,  120  111.  277,  11  N.  E.  529 ;  Douglass  v.  Low,  36  Hun  (N. 
Y.)  497;  Monnin  v.  Beroujon,  51  Ala.  196. 

8*  Bisp.  Eq.  §  234;  Wood  v.  Downes,  18  Ves.  120,  127;  Wade  v.  Pulsifer,  54 
Vt  45;  Waller  v.  Arinistead's  Adm'rs,  2  Leigh-  (Va.)  11,  21  Am.  Dec.  594; 
Farmer's  Ex'r  v.  Farmer,  39  N.  J.  Eq.  211. 

«6  Wade  v.  Pulsifer,  54  Vt  45. 


§§  185-186)  SETTLEMENTS  OUT   OF  COURT  449 

the  termination  of  the  guardianship  is  prima  facie  presumed  to  have 
been  made  under  undue  influence,  and  will  be  set  aside  unless 
shown  to  have  been  entirely  voluntary,  and  made  by  the  ward  with 
a  full  understanding  of  his  position  and  rights  in  regard  to  his 
property.86 

se  Hunter  v.  Atkins,  3  Mylne  &  K.  113;  Fidelity  Trust  Co.  v.  Butler,  91 
S.  W.  676,  28  Ky.  Law  Rep.  1268;  Berkmeyer  v.  Kellerman,  32  Ohio  St. 
239,  30  Am.  Rep.  577;  Garvin's  Adm'r  v.  Williams,  50  Mo.  206;  Ash  ton  v. 
Thompson,  32  Minn.  25,  18  N.  W.  918 ;  Tucke  v.  Buchholz,  43  Iowa,  415. 

TIFF.P.&  D.REL.(3o  ED.)— 29 


450  TERMINATION  OF  GUARDIANSHIP  -      (Ch. 


CHAPTER  XIII 

TERMINATION    OF    GUARDIANSHIP— ENFORCING    GUABDIAN'S 

LIABILITY 

187.  Termination  of  Guardianship. 

188.  Enforcement  of  Guardian's  Liability, 
189-191.    Guardians'    Bonds. 


TERMINATION  OF  GUARDIANSHIP 

187.  Guardianship  is  terminated  in  the  following  ways: 

(a)  By  the  ward's  reaching  his  majority. 

(b)  By  the  death  of  the  ward. 

(c)  By  the  death  of  the  guardian. 

(d)  By  the  marriage  of  a  female  ward. 

(e)  Under  the  statutes  of  some  states,  by  the  marriage  of  a  fe- 

male guardian. 

(f)  By  the  resignation  of  the  guardian,  if  he  is  permitted  to  re- 

sign. 

(g)  By  removal  of  the  guardian  by  the  court,  when  he  fails  to 

perform  his  duty,  or  when  he  is  unfit  for  the  position. 

Testamentary  guardianship,  unless  an  earlier  time  is  named  in 
the  appointment,1  and  chancery  2  and  statute 8  guardianship,  all 
terminate  at  majority.  If,  however,  as  has  been  seen,  a  guardian 
continues  to  manage  the  ward's  estate  after  his  majority,  without 
making  a  final  settlement,  this  will  constitute,  in  effect,  a  continua- 
tion of  the  guardianship.  It  will  constitute  him  a  quasi  guardian, 
and  he  must  account  for  all  transactions  on  the  same  principles 
which  govern  his  acts  during  the  ward's  minority.4  On  the  death 
of  the  ward,  the  guardianship  necessarily  terminates,  and  the 

1  Selby  v.  Selby,  2  Eq.  Cas.  Abr.  488 ;   Arthurs'  Appeal,  1  Grant,  Cas.  (Pa.) 
55;   Buckley  v.  Herder  (Tex.  Civ.  App.)  133  S.  W.  703. 

2  Eversley,  Dom.  Rel.  680. 

s  Bourne  v.  Maybin,  3  Wood,  724,  Fed.  Cas.  No.  1,700 ;  Probate  Judge  v. 
Stevenson,  55  Mich.  320.  23  N.  W.  348 ;  Rullmnn  v.  Rullman,  81  Kan.  521,  106 
Pac.  52;  Stroup  v.  State,  70  Ind.  495;  People  v.  Brooks,  22  111.  App.  594; 
Overton  v.  Beavers,  19  Ark.  623,  70  Am.  Dec.  610.  By  express  statutory  pro- 
vision in  some  states  it  terminates  earlier. 

*  Ante,  p.  401 ;  Hellish  v.  Mellish,  1  Sim.  &  S.  138 ;  Stinson  v.  Leary,  63 
Wis.  269,  34  N.  W.  63. 


§  187)  TERMINATION   OF   GUARDIANSHIP  451 

guardian  has  no  right  to  act  further  as  guardian,  or  to  administer 
on  the  estate,  but  must  adjust  his  accounts  with  the  ward's  legal  rep- 
resentatives.5 Likewise,  on  the  guardian's  death,  his  executor  or 
administrator  has  no  authority  to  act  as  guardian,  but  must  settle 
the  accounts  of  the  guardianship,  and  pay  the  balance  to  the  suc- 
ceeding guardian.6  Where  there  are  joint  statute  7  or  testamenta- 
ry 8  guardians,  and  one  dies,  the  survivor  continues  the  trust.  The 
reason  is  that  the  trust  is  coupled  with  an  interest.  "Letters  of 
guardianship  create  a  trust,  coupled  with  an  interest.  When  two 
are  appointed,  and  one  of  them  dies,  the  trust  survives.  It  is  so 
when  administration  is  granted  to  two.  The  law  is  the  same  as  to 
joint  guardians  and  joint  administrators."  9  The  guardianship  of  a 
female  ward  is  terminated  by  her  marriage,10  but  the  marriage  of  a 
male  ward  does  not  end  the  guardianship.11  At  common  law  the 
marriage  of  a  female  guardian  in  socage  had  the  effect  of  terminat- 
ing her  guardianship,  and  transferring  it  to  her  husband ; 12  but  the 
marriage  of  a  female  testamentary  guardian  did  not  have  this  ef- 


s  Bean  v.  Bumpus,  22  Me.  549 ;  State  Fair  Ass'n  v.  Terry,  74  Ark,  149, 
85  S.  W.  87 ;  Norton  v.  Strong,  1  Conn.  65 ;  Whitteinore  v.  Coleman,  239  111. 
450,  88  N.  B.  228 :  Martin  v.  Caldwell,  49  Ind.  App.  1,  96  N.  E.  660 ;  Ordway 
v.  Phelps,  45  Iowa,  27$;  In  re  Colvin's  Estate,  3  Md.  Oh.  278;  Barrett  v.  Pro- 
vincher,  39  Neb.  773,  58  N.  W.  292.  See,  also,  Livermore  v.  Ratti,  150  CaL 
458,  89  Pac.  327,  holding  that,  where  the  ward  dies  before  settlement,  the 
settlement  must  be  with  the  ward's  legal  representative. 

«  Connelly  v.  Weatherly,  33  Ark.  658 ;  Armstrong's  Heirs  v.  Walkup,  12 
Grat.  (Va.)  60S;  Peel  v.  McCarthy,  38  Minn.  451,  38  N.  W.  205,  8  Am.  St. 
Rep.  681 ;  Waterman  v.  Wright,  36  Vt.  164 ;  Woodbury  v.  Hammond,  54  Me. 
332;  'Gregg  v.  Gregg,  15  N.  H.  190. 

7  Pepper  v.  Stone,  10  Vt.  427.  And  in  this  country  the  same  rule  applies 
to  chancery  guardians.  People  v.  Byron,  3  Johns.  Cas.  (N.  Y.)  53.  But  in 
England  it  is  otherwise.  Bradshaw  v.  Bradshaw,  1  Russ.  528. 

s  Eyre  v.  Countess  of  Shaftsbury,  2  P.  Wtas.  103.  And,  when  one  declines 
to  act,  the  other  may  carry  on  the  trust.  Kevan  v.  Waller,  11  Leigh  (Va.) 
414,  36  Am.  Dec.  391;  In  re  Reynolds,  11  Hun  (N.  Y.)  41. 

»  Pepper  v.  Stone,  10  Vt  427. 

ioBac.  Abr.  "Guardian,"  E:  Mendes  v.  Mendes,  1  Ves.  Sr.  89;  Bartlett  v. 
Cowles,  15  Gray  (Mass.)  445 ;  In  re  Whitaker,  4  Johns.  Ch.  (N.  Y.)  378 ;  In  re 
Brick's  Estate,  15  Abb.  Prac.  (N.  Y.)  12 ;  Porch  v.  Fries,  18  N.  J.  Eq.  204 ; 
Jones  v.  Ward,  10  Yerg.  (Tenn.)  160;  Garnet  v.  Com.,  4  J.  J.  Marsh.  (Ky.) 
389;  Nicholson  v.  Wilborn,  13  Ga.  467;  Mouser  v.  Nunn,  142  Ky.  656,  134 
S.  W.  1148 ;  Carpenter  v.  Soloman  (Tex.  App.)  14  S.  W.  1074 ;  Shutt  v.  Car- 
loss,  36  N.  C.  232;  Armstrong's  Heirs  v.  Walkup,  12  Grat.  (Va.)  608;  Siman 
v.  Lens,  37  Phil.  Rep.  969. 

11  2  Kent,  Comm.  226;   Mendes  v.  Mendes,  1  Ves.  Sr.  89;   In  re  Brick's  Es- 
tate, 15  Abb.  Prac.  (N.  Y.)  12. 

12  Bac.  Abr.  "Guardian  and  Ward,"  E. 


452  TERMINATION   OF  GUARDIANSHIP  (Ch.  13 

feet.18  It  has  been  held  that  the  marriage  of  a  female  statute  guard- 
ian does  not  terminate  the  guardianship,14  but,  by  statute  in  some 
states,  it  is  otherwise.15  In  some  jurisdictions  her  husband  be- 
comes a  joint  guardian  with  her.16 

One  appointed  a  socage  guardian  could  not  refuse  the  office,17 
nor  resign.18  And  it  has  been  held  that  a  testamentary  guardian 
has  no  right  to  resign.10  When  he  refuses  to  act,  however,  the 
court  may  appoint  a  successor.20  Guardians  appointed  by  the 
court  of  chancery  cannot  resign  without  valid  grounds,  and  must 
obtain  the  sanction  of  the  court.21  Statute  guardians  are,  by  ex- 
press provision,  often  allowed  to  resign  their  office ;  and,  when 
there  is  no  express  enactment  to  that  effect,  their  tender  of  resigna- 
tion is  sufficient  ground  for  their  removal,  where  the  court  has  the 
power  of  removal  for  cause.22  But  a  resignation,  if  accepted,  does 
not  take  effect  until  there  has  been  an  accounting  and  a  discharge 
by  the  court  on  proper  notice.28 

Removal  of  Guardians 

As  incident  to  its  general  jurisdiction  in  guardianship,  the  Court 
of  Chancery,  in  England,  has  the  power  to  remove  guardians  whom 
it  has  appointed ; 2*  and,  while  testamentary  guardians  cannot  be 

is  Com.  Dig.  "Guardian,"  384;  Dillon  v.  Lady  Mount  Cashell,  4  Brown, 
Parl.  Gas.  306;  ante,  p.  898. 

"Leavel  v.  Bettis,  3  Bush  (Ky.)  74;  Cotton's  Guardian  v.  Wolf,  14  Bush 
(Ivy.)  238;  Birmingham  Coal  &  Iron  Co.  v.  Doe  ex  dem.  Arnett,  181  Ala. 
621,  62  South.  26;  In  re  Elgin's  Guardianship,  1  Tuck.  (N.  Y.)  97.  But  see 
Swartwout  v.  Swartwout,  2  Redf.  Sur.  (N.  Y.)  52. 

1  s  Carr  v.  Spannagel,  4  Mo.  App.  285 :   Field  v.  Torrey,  7  Vt  372 ;    Swart- 
wout v.  Swartwout,  2  Redf.   Sur.  (N.  Y.)  52. 

ie  Wood  v.  Stafford,  50  Miss.  370;   Martin  v.  Foster's  Ex'r,  38  Ala.  688. 
IT  Eversley,  Dom.   ReL   683;    Bedell  v.   Constable,   Vaughan,   177. 
is  St.  Marlbridge,  52  Hen.  Ill,  c.  17. 

i«  Spencer  v.  Earl  of  Chesterfield,  1  Amb.  146;  Young  v.  Lorain,  11  111. 
625,  52  Am.  Dec.  463. 

20  Spencer   v.   Earl   of   Chesterfield,  1  Amb.    146;     O'Keefe   v.   Casey,    I 
Schoales  &  L.  106;   McAlister  v.  Olinstead,  1  Humph.  (Tenn.)  210;   Ex  parte 
Crumb,  2  Johns.  Ch.  (N.  Y.)  439. 

21  Eversley,   Dom.   Rel.  684. 

2  2  Young  v.  Lorain,  11  111.  624,  52  Am.  Dec.  463;    Brown  v.  Huntsman,  32 
Minn.  466,  21  N.  W.  555.     The  court  may  appoint  a  successor.     Simpson  v. 
Gonzalez,  15  Fla.  9:    Lefever  v.  Lefever,  6  Md.  472.     A  mother,  who,  after 
accepting  the  tutorship  of  her  children,  remarries,  and  is  retained  in  the 
tutorship  with  her  husband,  cannot  resign.    In  re  Minors  Long,  118  La.  689, 
43  South.  279. 

2sWfcckerle  v.  People,  168  111.  250,  48  N.  E.  123;   Manning  v.  Manning,  61 
Ga.  137. 
2*  Eversley,  Dom.  Rel.  684. 


§  187)  TERMINATION  OP  GUARDIANSHIP  453 

removed,  they  may  be  superseded  and  restrained  from  interfering 
with  the  infant's  person  or  estate.25  Courts  of  chancery  in  the 
United  States,  possessing  a  general  jurisdiction  in  equity,  have 
sometimes  exercised  such  jurisdiction  in  matters  pertaining  to 
guardianship.  It  has  been  held  that  such  courts  may  remove,  not 
only  guardians  appointed  by  themselves,  but  also  statutory  and  tes- 
tamentary guardians.28  Probate,  surrogates',  and  similar  courts, 
invested  by  statute  with  jurisdiction  in  matters  pertaining  to  guard- 
ianships, generally  have  their  power  to  remove  testamentary  guard- 
ians 27  and  guardians  of  their  own  appointing.28  Though  it  has 
been  held  that  probate  courts  have  no  general  power  to  remove 
guardians,  but  only  for  causes  specified  in  the  statute,29  the  better 
rule  seems  to  be  that  the  court  is  not  confined  to  the  grounds  men- 
tioned in  the  statute,  but  may  exercise  discretion  in  the  removal  or 
retention  of  guardians.30 

A  breach  of  official  duty  by  a  guardian,  such  as  the  use  of  the 
ward's  property  for  his  own  advantage,31  the  failure  to  apply  the 
income  of  the  ward's  property  to  his  support,32  the  waste  of  the 
estate,38  or  failure  to  file  an  inventory  when  ordered,84  has  been 

2  5  Foster  v.  Denny,  2  Ch.  Gas.  237;    Ingham  v.  Bickerdike,  6  Madd.  275. 

26  Cowls  v.  Cowls,  3  Gilman  (111.)  435,  44  Am.  Dec.  708;    Ex  parte  Crumb, 
2  Johns.  Ch.  (N.  Y.)  439 ;    Disbrow  v.  Henshaw,  8  Cow.  (N.  Y.)  349 ;    2  Kent, 
Comm.  227. 

27  McPhillips  v.  McPhillips,  9  R.  I.  536;   Damarell  v.  Walker,  2  Redf.  Sur. 
(N.  Y.)  198;    Oopp  v.  Copp,  20  N.  H.  284. 

as  Simpson  v.  Gonzalez,  15  Fla.  9;  Clement's  Appeal,  25  N.  J.  Eq.  508; 
Skidrnore  v.  Davies,  10  Paige  (N.  Y.)  316.  A  guardian  appointed  by  the  cir- 
cuit court  cannot  be  removed  by  the  county  court.  State  v.  Kelley,  32  S.  D. 
526,  143  N.  W.  953. 

2»  State  ex  rel.  Baker  v.  Bird,  253  Mo.  569,  162  S.  Wl  119,  Ann.  Gas.  1915C, 
353. 

so  People  v.  Buck,  149  111.  App.  283;  Rummels  v.  Clark,  164  Iowa,  659, 
146  N.  W.  462. 

si  Snavely  v.  Harkrader,  29  Grat.  (Va.)  112;  In  re  O'Neil's  Guardian,  1 
Tuck.  (N.  Y.)  34 ;  Wood  v.  Black,  84  Ind.  279 ;  In  re  Cooper,  2  Paige  (N.  Y.) 
34.  But  see  Sweet  v.  Sweet,  Speers,  Eq.  (S.  C.)  309. 

32  in  re  Swift,  47  Gal.  629;   Ruohs  v.  Backer,  6  Eteisk.  (Tenn.)  395,  19  Am. 
Rep.  59S. 

33  Dickerson  v.  Dickorson.  31  N.  J.  Eq.  652;   In  re  Guardianship  of  Cham- 
bers, 46  Okl.  139,  148  Pac.  148. 

3*  Windsor  v.  McAtee,  2  Mete.  (Ky.)  430;  People  v.  Buck,  149  111.  App. 
283.  But  see  Succession  of  Burrell,  118  La.  1076,  43  South.  882.  The  provi- 
sion of  the  statute  requiring  a  guardian  to  file  an  inventory  and  account 
within  a  prescribed  time  is  merely  directory,  and  noncompliance,  if  not  at- 
tended by  fraud,  is  not  ground  for  removal.  Heath  v.  Haddock,  81  N.  J. 
Eq.  469,  86  AtL  945,  affirmed  .82  N.  J.  366,  91  Ati.  1069. 


454  TERMINATION  OF  GUARDIANSHIP  (Ch.  13 

held  sufficient  ground  for  removal.85  Removal  will  also  be  made 
in  case  the  guardian  is  unfit  for  the  position — as  when  his  interests 
are  hostile  to  the  ward's ;  *6  when  his  influence  on  account  of 
confirmed  habits  of  intoxication  87  or  immoral  life,38  is  bad ;  where, 
through  ignorance,  he  is  incompetent  to  manage  the  estate,88  or 
has  been  convicted  of  a  crime.40  Insolvency  will  not  necessarily 
disqualify,41  though  it  has  been  held  sufficient  ground  for  remov- 
al.42 Removal  from  the  state  has  been  held  a  ground  for  revoking 
the  appointment,43  and  is  sometimes  expressly  made  so  by  stat- 
ute.44 When  a  guardian  has  obtained  his  appointment  through 
false  representations,  he  may  be  removed.45  A  guardian  cannot  be 
removed  by  the  court  without  due  notice  to  him ; 4<J  and  the  ap- 


30  For  other  grounds  of  removal,  see  In  re  Dixon,  156  N.  C.  26,  72  S.  E. 
71  (failure  to  account  for  rents  and  profits  of  ward's  lauds) :  In  re  Allard,  49 
Mont.  219,  141  Pac.  661  (mingling  guardianship  funds  with  his  own,  or  profit- 
ing by  use  of  ward's  funds)  ;  Davis'  Adm'r  v.  Davis,  162  Ky.  316,  172  S.  W. 
665  (lack  of  interest  in  ward).  But  removal  for  irregularities  is  in  discre- 
tion of  court  In  re  Nelson,  148  Iowa,  118,  126  N.  W.  973,  Ann.  Cas.  1912B, 
974. 

36  in  re  Mansfield's  Estate,  206  Pa.  64,  55  Atl.  764;  In  re  Edmonson's 
Estate,  78  Neb.  279,  110  N.  W.  540.  Conduct  tending  to  alienate  the  child's 
affections  from  its  mother  has  been  held  sufficient  ground  for  removal.  Per- 
kins v.  Flnnegan,  105  Mass.  501. 

8T  Kettletas  v.  Gardner,  1  Paige  (N.  Y.)  488. 

as  Ruohs  v.  Backer,  6  Heisk.  (Tenn.)  395,  19  Am.  Rep.  598. 

3»  Nicholson's  Appeal,  20  Pa.  50;    Wood  v.  Black,  84  Ind.  279. 

40  in  re  Soley's  Estate,  13  Phila.  (Pa.)  402 ;   Clark  v.  Smith,  110  Miss.  728, 
70  South.  897. 

41  In  re  Chew's  Estate,  4  Md.  Ch.  60. 

42  in  re  Cooper,  2  Paige  (N.  Y.)  34.    And  see  Baldridge  v.  State,  69  Ind.  166. 

43  Cooke  v.  Beale,  33  N.  C.  36.    See  Succession  of  Cass,  42  La.  Ann.  381,  7 
South.  617.     Though  removal   from  the  state  does   not   ipso  facto  revoke 
guardianship,  the  court  should  remove  on  its  own  motion.     Watts  v.  Hicks, 
119  Ark.  621,  178  S.  W.  924.    Removal  of  an  undertutor  from  one  parish  to 
another  does  not  vacate  his  office.    Beenel  v.  Louisiana  Cypress  Lumber  Co., 
134  La.  467,  64  South.  380. 

44  State  v.  Engelke,  6  Mo.  App.  356;   Speight  v.  Knight,  11  Ala.  461.    Under 
Kirby's  Dig.  Ark.  §  3778,  letters  of  guardianship  are  not  ipso  facto  revoked 
by  the  guardian's  removal  from  the  state.     Watts  v.  Hicks,  119  Ark.  621, 
178  S.  W.  924. 

4 5  Clement's  Appeal,  25  N.  J.  Eq.  508;    Pease  v.  Roberts,  16  111.  App.  634. 

•*6  Gwin  v.  Vanzant,  7  Yerg.  (Tenn.)  143;  Copp  v.  Copp,  20  N.  H.  284;  Mont- 
gomery v.  Smith,  3  Dana  (Ky.)  599 ;  Speight  v.  Knight,  11  Ala.  461 ;  State  v. 
Engelke,  6  Mo.  App.  356;  Smith  v.  Haas,  132  Iowa,  493,  109  X.  W.  1075; 
Hart  v.  Gray,  3  Sumn.  339,  Fed.  Cas.  No.  6,152.  Contra,  where  he  leaves  the 
state.  Cooke  v.  Beale,  33  N.  C.  36. 


§  188)  ENFORCEMENT   OF   GUARDIAN'S  LIABILITY  455 

pointment  of  a  new  guardian  will  not  have  that  effect,  the  guardian- 
ship continuing  until  a  judicial  decree  of  removal  is  made.47 


ENFORCEMENT  OF  GUARDIAN'S  LIABILITY 

188.  A  suit  does  not  lie  by  the  ward  against  the  guardian  during 
the  guardianship,  but  courts  of  chancery  have  a  general 
jurisdiction  to  control  guardians  of  their  own  appointment 
in  the  management  of  the  estate.  The  liability  of  statute 
guardians  is  usually  enforced  by  means  of  their  bonds. 

Where  a  guardian  misappropriates  his  ward's  funds,  an  action  at 
law  will  not  lie  at  the  suit  of  the  ward,  in  indebitatus  assumpsit.48 
Nor  can  a  bill  in  equity  be  brought,  although  a  guardian  has  assets 
of  the  ward  in  his  hands,  to  charge  him  for  nonpayment  of  the 
ward's  debts,  since  there  is  an  adequate  remedy  at  law  on  the 
guardian's  bond.49  The  relation  being  that  of  trustee  and  cestui 
que  trust,  and  not  that  of  debtor  and  creditor,  the  guardian  is  sub- 
ject to  all  the  liabilities,  and  entitled  to  all  the  benefits,  incidental  to 
his  position,  one  of  which  is  the  right  to  an  opportunity  to  render 
his  account,  and  to  have, the  same  adjusted  by  the  court.80  It  has 
also  been  held  that  a  ward  cannot  recover  damages  during  the 
guardianship,  in  a  suit  against  his  guardian  for  an  assault  and 
battery,  though  it  might  be  ground  for  his  removal  or  for  redress  in 
the  criminal  courts.51 

A  court  of  chancery,  as  it  has  a  general  jurisdiction  over  guard- 
ians appointed  by  it,  can  make  such  orders  during  the  continuance 
of  the  guardianship  as  are  necessary  to  protect  the  ward's  estate, 
and,  by  a  bill  in  equity  brought  by  the  ward  through  his  next  friend, 
the  guardian  may  be  compelled  to  account.52  In  matters  of  ac- 

47  Fay  v.  Kurd,  8  Pick.  (Mass.)  528;   Copp  v.  Copp,  20  N.  IL  284;   Bledsoe 
v.  Britt,  6  Terg.  (Tenn.)  458,  463;    Estridge  v.  Estridge,  76  S.  W.  1101,  25 
Ky.  Law  Rep.  1076;    Robinson  v.  Zollinger,  9  Watts  (Pa.)  169;    Thomas  v. 
Burrus,  23  Miss.  550,  57  Am.  Dec.  154.     See,  also,  Dickerson  v.  Bowen,  128 
Ga.  122,  57  S.  E.  326. 

48  Brooks  v.  Brooks,  11  Gush.  (Mass.)  18;  Thorndike  v.  Hinckley,  155  Mass. 
263,  29  N.  E.  579;    Linton  v.  Wlalker,  8  Fla.  144,  71  Am.  Dec.  105. 

49Conant  v.   Kendall,   21  Pick.   (Mass.)   36. 

BO  Brooks  v.  Brooks,  11  Gush.  (Mass.)  18 ;  Bonner  v.  Evans,  89  Ga.  656,  15 
S.  E.  906;  Minter  v.  Clark,  92  Tenn.  459,  22  S.  W.  73. 

Gi  Mason  v.  Mason,  19  Pick.  (Mass.)  506.  But  see  Brattain  v.  Cannady,  96 
Ind.  266. 

62  Blake  v.  Blake,  2  Schoales  &,  L.  26 ;    Monell  v.  Mouell,  5  Johns.  Ch. 


456  TERMINATION  OF  GUARDIANSHIP  (Ch.  13 

counting,  courts  of  probate  and  other  similar  courts  are  often  held 
to  possess  powers  which  are  co-extensive  with  those  of  a  court  of 
chancery,  and  they  adopt  the  same  forms  and  mode  of  procedure.53 
Courts  having  a  general  jurisdiction  over  the  estates  of  wards  have 
also  been  held  to  have  the  power  to  order  the  payment  of  claims.5* 
When  a  guardian  retains  his  ward's  property  after  the  termination 
of  the  guardianship,  the  action  of  account  will  lie  at  law,  at  the  suit 
of  the  ward.65  Statute  guardians  are  generally  held  to  account- 
ability by  enforcing  their  liability  under  their  bonds,  as  explained 
in*  the  following  section. 

' 
GUARDIANS'  BONDS 

189.  All  guardians,  with  the  exception  of  testamentary  guardians 

in  some  jurisdictions,  must  give  bonds  before  entering  on 
their  duties;  and  they  and  their  sureties  arc  liable  there- 
under for  all  losses  occurring  through  the  guardians'  de- 
linquencies. 

190.  The  liability  under  a  guardian's  bond  continues  until  barred 

by  the  statute  of  limitations.  By  the  weight  of  authority, 
it  cannot  be  enforced  until  determined  by  the  settlement 
of  the  final  account. 

191.  The  sureties  on  the  special  sale  bond,  and  not  those  on  the 

general  bond,  are,  by  the  weight  of  authority,  liable  for  the 
proceeds  of  a  sale  of  real  estate  under  order  of  the  court. 

Guardians  of  the  person  and  estate  appointed  by  the  Court  of 
Chancery  in  England,88  and  statute  guardians  in  this  country,57 
are  required  to  give  bonds,  with  sureties  satisfactory  to  the  court, 
for  the  faithful  discharge  of  their  duties,  and  to  duly  account.  They 

(N.  Y.)  283,  9  Am.  Dec.  298 ;  Swan  v.  Dent,  2  Md.  Ch.  Ill ;  LInton  v.  Walk- 
er, 8  Fla.  144,  71  Am.  Dec.  105;  Lemon  v.  Hansbarger,  6  Grat.  (Va.)  301; 
Manning  v.  Manning,  61  Ga.  137 ;  Peck  v.  Braman,  2  Blackf.  (Ind.)  141. 

53  in  re  Steele,  65  111.  322 ;   Cheney  v.  Roodhouse,  135  111.  257,  25  N.  E.  1019 ; 
Tudhope  v.  Potts,  91  Mich.  490,  51  N.  W.  1110;   Seaman  v.  Duryea,  11  N.  Y.' 
324. 

6*  Yeakle  v.  Winters,  60  Ind.  554 ;   Turner  v.  Flagg,  6  Ind.  App.  563,  33  N. 
E.  1104. 

BO  Field  v.  Torrey,  7  Vt.  372;  Harris  v.  Harris,  44  Vt  320;  Green  v.  John- 
son, 3  Gill  &  J.  (Md.)  389. 

oe  Eversley,  Dom.  Rel.  657. 

57  By  statute,  testamentary  guardians  are  often  required  to  give  bond,  and 
render  account.  Murphy  v.  Superior  Court,  84  Cal.  592,  24  Pac.  310. 


§§  189-191)  GUARDIANS'  BONDS  457 

have  no  authority  to  act  before  the  giving  of  the  bond.58  The 
guardian  and  his  sureties  are  responsible  for  all  property,  of  every 
nature  and  description,  which  comes,  or  which,  if  the  guardian  per- 
forms his  duty,  should  come,  into  his  hands  as  guardian,59  as  well 
as  for  losses  occurring  through  his  failure  to  perform  his  duty.60 
For  property  of  his  ward  which  may  come  into  his  hands  otherwise 
than  in  his  capacity  as  guardian,  his  sureties  are  not  responsible.61 
Nor  are  they  liable  for  property  received,  or  for  acts  performed, 
after  his  final  discharge.62  But  the  termination  of  the  guardianship 
does  not  relieve  the  sureties  from  liability  for  property  received 
and  acts  performed  during  its  continuation,63  and  their  liability 
continues,  unless  limited  by  special  statute,  until  the  statute  of 
limitations  has  run.64  On  the  death  of  the  surety,  his  estate  is 


ss  Wuesthoff  v.  Germania  Life  Ins.  Co.,  107  N.  Y.  580,  14  N.  E.  811;  Poe  v. 
Schley,  16  Ga.  364;  Westbrook  v.  Comstock,  Walk.  Ch.  (Mich.)  314;  People 
v.  Seelye,  146  111.  189.  32  N.  EL  458. 

59  Mattoon  v.  Cowing,  13  Gray  (Mass.)  387;  Brooks  v.  Tobin,  135  Mass.  69; 
Pierce  v.  Prescott,  128  Mass.  140 ;  Bond  v.  Lockwood,  33  HI.  212 ;  McClendon 
v.  Harlan,  2  Heisk.  (Tenn.)  337:  Hunt  v.  State,  53  Ind.  321;  Neill  v.  Neill, 
31  Miss.  36 ;  Newberry  v.  Wilkinson,  199  Fed.  673,  118  C.  C.  A.  Ill  affirming 
Newbery  v.  Wilkinson  (C.  C.)  190  Fed.  62;  State  v.  Brown,  73  N.  C.  81; 
Butler  v.  Legro,,  62  N.  JJ.  350,  13  Am.  St.  Rep.  573;  Culp  v.  Stanford,  112 
N.  C.  664,  16  S.  E.  761.  But  see  Rudy  v.  Rudy,  145  Ky.  245,  140  S.  W.  192. 

eo  Richardson  v.  Boynton,  12  Allen  (Mass.)  138,  90  Am.  Dec.  141;  Taylor 
v.  Hemingray,  81  Ky.  158 ;  Jennings  v.  Copeland,  90  N.  C.  572 ;  Eichelberger 
v.  Gross,  42  Ohio  St.  549;  Yost  v.  State,  80  Ind.  350. 

si  Livermore  v.  Bemis,  2  Allen  (Mass.)  394;  Hinckley  v.  Harriman,  45 
M5ch.  343,  7  N.  W.  907 ;  Allen  v.  Crosland,  2  Rich.  Eq.  (S.  C.)  68 ;  Hindman  v. 
State,  61  Md.  471;  Parker  v.  Wilson,  98  Ark.  553,  136  S.  Wf.  981;  Id.,  99 
Ark.  344,  137  S.  W.  926,  Ann.  Cas.  1913B,  84.  And  see  Rudy  v.  Rudy,  145 
Ky.  245,  140  S.  W.  192. 

62  Merrells  v.  Phelps,  34  Conn.  109.  The  sureties  on  a  guardian's  bond  are 
liable  only  for  the  money,  or  property  that  actually  was  in,  or  that  came 
into,  his  hands  during  the  term  covered  by  the  bond.  American  Bonding 
Co.  v.  People,  46  Colo.  394,  104  Pac.  81. 

ea  Naugle  v.  State,  101  Ind.  284 ;  In  re  Walling,  35  N.  J.  Eq.  105 ;  Jennings 
v.  Copeland,  90  N.  C.  572.  And  see  Baum  v.  Hartmann,  226  111.  160,  80  N. 
E.  711,  117  Am.  St.  Rep.  246. 

64Bonham  v.  People,  102  111.  434;  Ragland  v.  Justices  of  Inferior  Court, 
10  Ga.  65.  To  the  same  effect,  see  Wescott  v.  Upham,  127  Was.  590,  107  N. 
W.  2 ;  Murphy  v.  Cady,  145  Mich.  33,  108  N.  W.  493.  The  statute  runs  from 
the  time  the  guardian  accounts,  Bell  v.  Rudolph,  70  Miss.  234,  12  South. 
153 ;  or  from  the  time  when  he  denies  or  repudiates  the  trust,  Reuter  v. 
Lawe,  86  Wis.  106,  56  N.  W.  472.  In  the  case  of  fraud,  the  statute  runs  from 
the  date  of  its  discovery,  Lataillade  v.  Orena,  91  Cal.  565,  27  Pac.  924,  25  Am. 
St.  Rep.  219 ;  but  not  before  the  ward's  majority,  Minter  v.  Clark,  92  Tenn. 
459,  22  S.  Wi  73. 


458  TERMINATION   OF  GUARDIANSHIP  (Ch.  13 

liable.88  Even  the  discharge  of  a  surety  will  relieve  him  only  from 
the  acts  of  the  guardian  occurring  subsequent  to  the  giving  of  a  new 
bond.68  For  previous  acts  the  sureties  on  the  old  and  new  bonds 
are  in  some  jurisdictions  jointly  liable,67  but  in  others  the  second 
bond  has  been  held  not  to  be  retrospective.68  By  the  weight  of 
authority,  an  action  on  a  guardian's  bond  will  not  lie  until  the 
guardian's  liability  is  determined  by  the  settlement  of  his  final  ac- 
count.69 

When  a  special  bond  is  required,  as  on  the  sale  of  real  estate  by 
a  guardian  under  a  license  by  the  court,  the  conduct  of  such  sale, 
and  the  application  of  the  proceeds  thereof  in  accordance  with  the 
license,  are  generally  held  a  separate  trust,  and  not  one  of  the  gener- 
al duties  of  the  guardianship ;  and  therefore,  in  case  of  a  breach, 
the  sureties  on  the  special  bond  are  liable,  and  not  those  on  the 
general  bond.70  In  some  states,  however,  the  sureties  on  the  spe- 

« 5  Anderson  v.  Thomas,  54  Ala.  104;  Hutchcraft  v.  Shroufs  Heirs,  1 
T.  B.  Mon.  (Ky.)  208,  15  Am.  Dec.  100;  Brooks  v.  Rayner,  127  Mass.  268; 
Cotton  v.  State,  64  Ind.  573. 

«8  Eichelberger  v.  Gross,  42  Ohio  St.  549;  In  re  Conover,  35  N.  J.  Eq.  108; 
Bellune  v.  Wallace,  2  Rich.  (S.  C.)  80 ;  Yost  T.  State,  SO  Ind.  350 ;  Kaspar  v. 
People,  230  111.  342,  82  N.  E.  816.  See,  also,  United  States  Fidelity  &  Guar- 
anty Co.  v.  Hansen,  36  Okl.  459,  129  Pac.  60,  Ann.  Cns.  1915A,  402;  Id.,  36 
Okl.  449,  129  Pac.  67. 

a*  Loring  v.  Bacon,  3  Cush.  (Mass.)  465 ;  Miller  v.  Kelsey,  100  Me.  103,  60 
Atl.  717;  H-utchcraft  v.  Shrout's  Heirs,  1  T.  B.  Mon.  (Ky.)  208,  15  Am.  Dec. 
100;  Bell's  Adm'r  v.  Jasper,  37  N.  C.  597;  Ammons  v.  People,  11  111.  6; 
Steele  v.  Reese,  6  Yerg.  (Tenn.)  263.  See,  also,  Kaspar  v.  People,  230  111.  342, 
82  N.  E.  816  affirming  132  111.  App.  1. 

«s  Lowry  v.  State,  64  Ind.  421 ;  State  v.  Jones,  89  Mo.  470,  1  S.  W.  355 ; 
State  v.  Shackleford,  56  Miss.  648;  JEtna.  Indemnity  Co.  v.  State,  101  Miss. 
703,  57  South.  980,  39  L.  R.  A.  (N.  S.)  961 ;  Sebastian  v.  Bryan,  21  Ark.  447. 

so  Murray  v.  Wood,  144  Mass.  195,  10  N.  E.  822;  Wallace  v.  Swepston,  74 
Ark.  520,  86  S.  W.  398,  109  Am.  St.  Rep.  94 ;  Bailey  v.  Rogers,  1  Greenl.  (Me.) 
186;  Stilwell  v.  Mills,  19  Johns.  (N.  Y.)  304;  BISBEE  v.  GLEASON,  21  Neb. 
534,  32  N.  W.  578,  Cooley  Cas.  Persons  and  Domestic  Relations,  240;  Allen 
v.  Tiffany,  53  Cal.  16;  Vermilya  v.  Bunce,  61  Iowa,  605,  16  N.  W.  735; 
Ordinary  v.  Heishon,  42  N.  J.  Law,  15.  Contra,  State  v.  Slevin,  93  Mo.  253, 
6  S.  W.  68,  3  Am.  St.  Rep.  526;  Wolfe  v.  State,  59  Miss.  338;  Call  v.  Ruffin, 
1  Call  (Va.)  333;  Bonham  v.  People,  102  111.  434;  Farrington  v.  Secor,  91 
Iowa,  606,  60  N.  W.  193.  There  need  be  no  accounting  when  the  liability 
is  otherwise  definitely  determined.  Long  v.  Long,  142  N.  Y.  545,  37  N.  E. 
486. 

TO  Lyman  v.  Conkey,  1  Mete.  (Mass.)  317;  Swartwout  v.  Oaks,  52  Barb.  (N. 
Y.)  622 ;  Yost  v.  State,  80  Ind.  350 ;  Williams  v.  Morton,  38  Me.  47,  61  Am. 
Dec,  229 ;  Judge  of  Probate  v.  Toothaker,  83  Me.  195,  22  Atl.  119 ;  Blauser 
v.  Diehl,  90  Pa.  350;  Smith  v.  Gummere,  39  N.  J.  Eq.  27;  Madison  County 
v.  Johnston,  51  Iowa,  152,  50  N.  W.  492.  Contra,  Hart  v.  Stribling,  21  FLa. 


§§  189-191)  GUARDIANS'  BONDS  459 

cial  and  on  the  general  bonds  are  jointly  liable,71  while  in  others 
the  sureties  on  the  special  bond  are  primarily  liable.72 

136;  State  v.  Cox,  62  Miss.  786.  Where  a  guardian  sold  for  reinvestment, 
and  neglected  to  reinvest,  he  was  held  liable,  under  his  special  sale  bond,  for 
the  principal,  and  on  his  general  bond,  for  interest  thereon.  Mattoon  v.  Cow- 
ing, 13  Gray  (Mlass.)  387.  But  see  Smith  v.  Gummere,  supra.  The  liability 
under  a  special  sale  bond  has  been  held  limited  to  a  proper  compliance  with 
the  prerequisites)  to  the  sale,  a  faithful  discharge  of  the  duties  in  conducting 
it,  and  to  investing  the  proceeds  as  directed  by  the  order,  and  as  not  extend- 
ing to  the  subsequent  management  of  such  proceeds,  or  their  final  payment  at 
the  expiration  of  the  guardianship.  Fay  v.  Taylor,  11  Mete.  (Mass.)  529. 

71  Barker  v.  Boyd,  71  S.  W.  528,  24  Ky.  Law  Rep.  1389;  Swisher  v.  Mc- 
Whinney,  64  Ohio  St.  343,  60  N.  E.  565. 

"Findley   v.    Flndley,    42   W.    Va.   372,   26    S.    E.    433. 


PART  IV 

INFANTS,  PERSONS  NON  COMPOTES  MENTIS, 
AND  ALIENS 

CHAPTER  XIV 
INFANTS 

192.  Infancy  Defined. 

193.  Custody   and  Protection. 
194-198.    Privileges  and  Disabilities. 

194.  In    General. 

195.  Capacity  to  Hold  Office. 

196.  Capacity  to  Make  Will. 

197.  Capacity    to    Sue   and    Defend. 

198.  Infants  as  Witnesses.  • 
199-217.    Contracts    of   Infants. 

199.  In  General. 

200-203.  Liability    for   Necessaries. 

204.  Ratification    and   Disaffirmance. 

205-207.  Time  of  .  Avoidance. 

208-209.  Who   may   Avoid    Contract. 

210-211.  What   Constitutes    Ratification. 

212.  What    Constitutes    Disaffirmance. 

213.  Extent  of  Ratification  or  Disaffirmance. 
214-215.  Return  of  Consideration. 

216-217.  Effect    of   Ratification    or    Disaffirmance. 

218.  Removal   of  Disabilities. 

219-220.  Actions  in  Tort  by  Infants. 

221-222.  Liability  of  Infants  for  Torts. 

223-224.  Responsibility  of  Infants  for  Crime. 


INFANCY  DEFINED 

192.  At  common  law  all  persons  under  21  years  of  age  are  infants. 
But,  by  statute,  in  some  states,  females  attain  their  ma- 
jority at  18,  and  in  some  states,  by  statute,  all  minors  at- 
tain their  majority  on  marriage. 

The  term  "infancy"  is  used  in  law  to  designate  the  status  of  per- 
sons under  the  age  of  majority,  which  is  fixed  at  common  law  at  21 
for  both  sexes.  Since  the  law  disregards  fractions  of  a  day  in  com- 
puting time,  an  infant  becomes  of  age  at  the  first  moment  of  the 

(460) 


§  193)  CUSTODY  AND   PROTECTION  461 

day  preceding  the  twenty-first  anniversary  of  his  birth.1  By  stat- 
ute, in  some  states  females  become  of  age  at  18;  in  others,  on 
marriage;  and  in  a  few  states  both  sexes  attain  their  majority  on 


marriage.2 


CUSTODY  AND  PROTECTION 


193.  The  state  has  power  to  control  and  regulate  the  custody  of 
children  and  to  establish  and  enforce  regulations  for  their 
protection. 

The  right  of  parents  8  and  the  duly  appointed  guardian  *  to  the 
custody  of  the  child  has  been  discussed  elsewhere.  While  the  gen- 
eral right  of  parents  and  guardians  is  recognized,  it  is  well  settled 
that  they  possess  no  absolute  right  to  the  custody  of  the  child, 
but  that  the  state,  as  parens  patriae,  as  the  welfare  of  the  child  may 
demand,  may  control  and  determine  its  proper  custody,5  and  leg- 

1 1  Bl.  Comm.  463 ;  2  Kent,  Coram.  233 ;  Anon.,  1  Ld.  Raym.  480 ;  Fitz- 
Htigh  v.  Dennington,  6  Mod.  259;  Hamlin  v.  Stevenson,  4  Dana  (Ky.)  597; 
STATE  v.  CLARKE,  3  Har.  (Del.)  557,  Cooley  Gas.  Persons  and  Domestic  Re- 
lations, 245 ;  United  States  v.  Wright,  197  Fed.  297, 116  C.  C.  A.  659 ;  Ex  parte 
Wood,  5  Cal.  App.  471,  90  Pac.  961 ;  Wells  v.  Wells,  6  Ind.  447 ;  Bardwell  v. 
Purrington,  107  Mass.  419.  If  one  be  born  the  1st  of  February  at  11  at  night, 
and  on  the  last  of  January  in  the  twenty-first  year  of  his  age,  at  1  of  the 
clock  in  the  morning,  he  makes  his  will  of  lands,  and  dies,  it  is  a  good  will, 
for  he  was  then  of  age.  Anonymous,  1  Salk.  44. 

2  Stim.  Am.  St.  Law,  §  6601.     The  Legislature  has  power  to  change  the 
age  at  which  a  minor  is  privileged  to  exercise  legal  rights  which  shall  be 
binding  on  him.     Young  v.  Sterling  Leather  Works,  91  N.  J.  Law,  289,  102 
Atl.  395.    A  statute  extending  the  period  of  minority  in  males  and  females  to 
21  years,  did  not  change  status  of  one  who  had  already  reached  age  of  ma- 
jority  under  former   law.     Smith   v.    Smith,   104   Kan.   629,   180   Pac.   231. 
The  status  of  a  person  as  to  his  infancy  or  majority  is  determined  by  the 
law  of  his  domicile.    Harding  v.  Schapiro,  120  TVld.  541,  87  Atl.  951. 

3  Ante-,  p.  343. 
*Ante,  p.  408. 

o  2  Kent,  Comm.  205 ;  Lally  v.  Sullivan,  85  Iowa,  49,  51  N.  W.  1155,  16  L. 
R.  A.  681;  In  re  Knowack,  158  N.  Y.  482,  53  N.  E.  676,  44  L,  R.  A.  699;  In 
re  Hope,  19  R.  I.  486,  34  Atl.  994 ;  State  v.  Klasen,  123  Minn.  382,  143  N.  W. 
984,  49  L.  R.  A.  (N.  S.)  597;  In  re  Stittgen,  110  Wis.  625,  86  N.  W.  563: 
Bunt  v.  Wayne  Circuit  Judges,  142  Mich.  93,  105  N.  W.  531,  3  L.  R.  A.  (N. 
S.)  564,  7  Ann.  Cas.  821;  Hesselman  v.  Haas,  71  IS.  J.  E<£  689,  64  Atl.  165; 
Kelsey  v.  Green,  69  Conn.  291,  37  Atl.  679,  38  L.  R.  A.  471.  In  some  juris- 
dictions it  is  held  that  the  court  of  chancery,  as  representing  the  government, 
has  power  independent  of  statute  to  control  the  custody  of  children  and  to 
protect  them.  Hayes  v.  Hayes,  192  Ala.  280,  68  South.  351 ;  Witter  v.  Cook 
County  Com'rs,  256  111.  616.  100  N.  E.  148 ;  In  re  Williams,  77  N.  J.  Eq.  478, 
77  Atl.  350,  79  Atl.  686.  Right  to  commit  children  to  the  custody  of  societies 


462  INFANTS  (Ch.  14 

islate  for  its  protection.6  Thus,  it  is  within  the  power  of  the 
Legislature  to  enact  statutes  to  prevent  the  presence  of  infants  in 
billiard  and  pool  rooms,  saloons,  and  the  like,7  or  the  exhibition  to 
an  infant  of  stories  of  crime  or  bloodshed,  or  obscene  books  or 
pictures ; 8  to  prescribe  regulations  as  to  the  employment  of  chil- 
dren ;  •  and  to  prevent  and  punish  cruelty  to  children ; 10  or  neglect 
endangering  the  life  or  injuring  the  health  of  children.11 


organized  to  care  for  neglected  children.     McFall  v.  Simmons,  12  S.  D.  562, 

81  X.  W.  898 ;   In  re  Kol,  10  X.  D.  493,  88  X.  W.  273 ;    State  v.  Isenhuth,  34 
S.  D.  218,  148  X.  W.  9 ;    Kennedy  v.  Meara,  127  Ga.  68,  56  S.  E.  243,  9  Ann. 
Cas.  396. 

«  People  v.  Pierson.  176  N.  Y.  201,  68  X.  E.  243,  63  I/.  R  A.  187,  98  Am. 
St.  Rep.  666;  People  v.  Ewer.  141  N.  Y.  129,  36  N.  E.  4,  25  L.  R.  A.  794,  38 
Am.  St.  Rep.  788 :  Commonwealth  v.  Wormser,  260  Pa.  44,  103  Atl.  500  af- 
firming 67  Pa.  Super.  Ct.  444:  In  re  Michels,  170  Cal.  339,  149  Pac.  587; 
Glenn  v.  State,  10  Ga.  App.  128,  72  S.  E.  927 ;  Travis  v.  State,  31  Ohio  Cir. 
Ct.  R.  492.  The  various  so-called  "Mothers'  Pension"  acts  are  a  valid  ex- 
ercise of  the  legislative  power  to  protect  the  dependent  children  of  widowed 
and  indigent  mothers.  See  State  Board  of  Control  v.  Buckstegge,  18  Ariz.  277, 
158  Pac.  837;  State  v.  Klasen,  123  Minn.  382,  143  N.  W.  984,  49  L.  R.  A. 
(X.  S.)  597;  Cass  County  v.  Xixon,  35  X.  D.  601,  161  N.  W.  204,  L.  R.  A. 
1917C,  897 ;  Finley  v.  Marion  County,  81  Or.  294,  159  Pac.  557 ;  In  re  Ramsey, 
102  Xeb.  302,  167  X.  W.  66 ;  Commonwealth  v.  Powell,  256  Pa.  470,  100  Atl. 
964.  L.  R.  A.  1917E,  1150. 

7  Powell  v.  State,  62  Ind.  531 ;  State  v.  Johnson,  108  Iowa,  245,  79  X.  W. 
62;  Ex  parte  Meyers,  7  Cal.  App.  528,  94  Pac.  870;  Commonwealth  v.  Wills, 

82  S.  W.  236,  26  Ky.  Law  Rep.  515i;   State  v.  Schnables,  109  Ark.  429,  160  S.  W. 
388;   Lang  v.  State,  162  Ala.  85,  50  South.  353;   Commonwealth  v.  Xance,  158 
I\5 .  444,  165  S.  W.  423 ;    State  v.  Rosenfield,  111  Minn.  301,  126  N.  W.  1068, 
29  L.  R.  A.  (N.  S.)  331,  137  Am.  St  Rep.  557;    State  v.  Anderson,  61  Wash. 
674,  112  Pac.  931 ;   Rhodes  v.  State,  118  Tenn.  761,  102  S.  W.  899. 

s  Strohm  v.  People,  160  111.  582,  43  X.  E.  622,  affirming  60  111.  App.  128. 

»  City  of  Xew  York  v.  Chelsea  Jute  Mills,  43  Misc.  Rep.  266,  88  X.  Y. 
Supp.  1085;  Beauchamp  v.  Sturges  &  Burn  Mfg.  Co.,  250  111.  303,  95  X.  E. 
204,  Ann.  Cas.  1912B,  275,  affirmed  Sturges  &  Burn  Mfg.  Co.  v.  Beaucamp, 
231  U.  S.  320,  34  Sup.  Ct.  60,  58  L.  Ed.  245,  L.  R.  A.  1915A,  1196;  State  v. 
Rose,  125  La.  462,  51  South.  496,  26  L.  R.  A.  (X.  S.)  821 ;  Hanahan  v.  Pitts- 
ton  Coal  Min.  Co.,  218  Pa.  311,  67  Atl.  642,  12  L.  R.  A.  (X.  S.)  461,  120  Am. 
St.  Rep.  885 ;  Green  v.  Appleton  Woolen  Mills,  162  W!s.  145,  155  X.  W.  958 ; 
People  v.  Taylor,  192  X.  Y.  398,  85  X.  E.  759,  reversing  124  App.  Div.  434,  108 
N.  Y.  Supp.  796 ;  Pettit  v.  Atlantic  Coast  Line  R.  Co.,  156  X.  C.  119,  72  S.  E. 
195;  Overland  Cotton  Mill  Co.  v.  People,  32  Colo.  263,  75  Pac.  924,  105  Am. 
St.  Rep.  74;  State*v.  Shorey,  48  Or.  396,  86  Pac.  881;  State  v.  Deck,  108  Mo. 
App.  292,  83  S.  W.  314. 

10  Gary  v.  State.  118  Ga.  17,  44  S.  E.  817;  People  v.  Loomis,  161  Mich. 
651,  126  X.  W.  9S5;  Stone  v.  State,  1  Ga.  App.  292,  57  S.  E.  992. 

uLynam  v.  People,  65  111.  App.  687;  Cowley  v.  People,  83  X.  Y.  464,  38 
Am.  Rep.  464 ;  People  v.  Pierson,  176  X.  Y.  201,  68  X.  E.  243,  63  L.  R.  A.  187, 
98  Am.  St.  Rep.  666;  People  v.  Trank,  88  App.  Div.  294,  85  N.  Y.  Supp.  55. 


§  193)  CUSTODY   AND   PROTECTION  463 

Juvenile  Dependents  and  Delinquents 

Perhaps  the  most  noteworthy  instances  of  legislation  looking 
to  the  care  and  protection  of  children  are  to  be  found  in  statutes 
passed  in  most,  if  not  all,  states,  in  comparatively  recent  years, 
providing  for  the  care  of  delinquent,  dependent,  and  neglected  chil- 
dren and  establishing  juvenile  courts  to  administer  the  law.  These 
laws  have  been  generally  held  to  be  constitutional,12  and  a  valid 
exercise  of  the  police  power  of  the  state.13  Such  statutes  are  in 
conformity  to  a  sound  public  policy,14  and  are  a  proper  exercise  of 
the  right  of  the  state  as  parens  patriae  to  promote  the  well-being 
of  children  unable  to  care  for  themselves  or  liable  to  become  a 

* 

burden  to  the  state,  either  through  neglect  or  a  tendency  to  be- 
come criminal.15  They  are  not  objectionable  as  depriving  parents 
of  their  right  to  the  custody  of  their  children.16 

These  statutes  provide  generally  fon  the  commitment  of  depend- 
ent and  neglected  children  to  persons,  societies,  or  institutions 
where  they  will  receive  proper  care,17  and  for  the  commitment  of 
delinquent  children  to  proper  industrial  or  reform  schools.18  The 


y.  Bowden,  54  Fla.  302,  45  South.  499,  14  Ann.  Oas.  816;  Rooks 
v.  Tindall,  138  Ga.  863,  76  S.  E.  378  ;  Ex  parte  Sharp,  15  Idaho,  120,  96  Pac. 
563,  18  L.  R.  A.  (N.  S.)  886;  In  re  Turner,  94  Kan.  115,  145  Pac.  871,  Ann. 
Cas.  1916E,  1022  ;  Childress  v.  State,  133  Tenn.  121,  179  S.  W.  643  ;  Mill  v. 
Brown,  31  Utah,  473,  88  Pac.  609,  120  Am.  St.  Rep.  935  ;  Leonard  v.  Licker,  3 
Ohio  App.  377. 

is  Board  of  County  Com'rs  of  Hillsborough  County  v.  Savage,  63  Fla. 
337,  58  South.  835;  Egoff  v.  Board  of  Children's  Guardians  of  Madison  Coun- 
ty, 170  Ind.  238,  84  N.  E.  151  ;  State  v.  Isenhuth,  34  S.  D.  218,  148  N.  W.  9. 

i*  State  v.  Bryant,  94  Neb.  754,  144  N.  W.  804. 

is  State  ex  rel.  Cave  v.  Tincher,  258  Mo.  1,  166  S.  W.  1028,  Ann.  Cas.  1915D, 
696;  State  v.  Dunn,  53  Or.  304,  99  Pac.  278,  100  Pac.  258;  In  re  Turner,  94 
Kan.  115,  145  Pac.  871,  Ann.  Cas.  1916E,  1022.  These  laws  rest  on  the  funda- 
mental doctrine  that  a  child  from  its  birth  owes  allegiance  to  the  government 
of  the  country  of  its  birth  and  is  entitled  to  the  protection  of  that  govern- 
ment. Ex  parte  Powell,  6  Old.  Cr.  495,  120  Pac.  1022. 

i«  United  States  v.  Behrendsohn  (D.  C.)  197  Fed.  953;  State  v.  Cagle,  111 
S.  C.  548,  96  S.  E.  291.  The  state's  power  to  detain  minor  children  is  not 
arbitrary  or  unlimited,  but  depends  on  their  lack  of  parental  care  and  the 
existence  of  improper  environment.  Ex  parte  Watson,  157  N.  C.  340,  75  S. 
E.  1049. 

17  Rogers  v.  State,  4  Ga.  App.  392,  61  S.  E.  496;  Lindsay  v.  Lindsay,  257 
111.  328,  100  N.  E.  892,  45  L.  R.  A.  (N.  S.)  908,  Ann.  Cas.  1914A,  1222  ;  Henn 
v.  Children's  Agency,  204  Fed.  766,  123  C.  C.  A.  216;  Braua  v.  Braua,  139 
La.  305,  71  South.  519  ;  Moch  v.  Superior  Court  (Cal.  App.)  179  Pac.  440. 

is  Van  Walters  v.  Board  of  Children's  Guardians  of  Marion  County,  132 
Ind.  567,  32  N.  E.  568,  IS  L.  R.  A.  431  ;  In  re  Gassaway,  70  Kan.  695,  79  Pac. 
113;  Mill  v.  Brown,  31  Utah,  473,  88  Pac.  609,  120  Am.  St  Rep.  935;  Ex 


•164  INFANTS  (Ch.  14 

statutes  apply,  of  course,  only  to  minors,  and  often  only  to  minors 
under  18  years  of  age.19  They  are  not  criminal  in  character,  but 
rather  benevolent,  paternal,  and  reformatory.20  Their  object  is 
not  punishment,  but  the  removal  of  the  delinquent  from  temptation 
and  improper  environment.21  The  statutes  are  remedial  in  their 
nature  and  should  be  liberally  construed.22 

parte  Prultt,  82  Tex.  Cr.  R.  394,  200  S.  W.  392;  Ex  parte  Gilder,  98  Wash. 
514.  167  Pac.  1093;  White  v.  Board  of  Managers  of  State  Industrial  School, 
79  Misc.  Rep.  494,  141  N.  Y.  Supp.  173;  People  ex  rel.  New  York  Juvenile 
Asylum  v.  Board  of  Sup'rs  of  Nassau  County,  168  App.  Div.  863,  153  N.  Y. 
Supp.  1076.  Delinquency,  as  applied  in  these  statutes,  was  unknown  to  the 
common  law.  State  v.  Dunn,  53  Or.  304,  99  Pac.  27S,  100  Pac.  258.  The  acts 
or  omissions  of  a  child,  which  in  an  adult  would  be  a  crime,  constitute 
juvenile  delinquency,  except  where  the  child  knew  the  wrongfulness  thereof. 
Ex  parte  Powell,  6  Okl.  Cr.  495,  120  Pac.  1022.  Refusal  to  attend  school 
is  delinquency,  under  the  Wisconsin  Statute.  State  v.  Freudenberg,  166 
Wls.  35,  163  N.  W.  184. 

i»  Ex  parte  Lewis,  3  Cal.  App.  738.  86  Pac.  996;  De  Kay  v.  Oliver,  161 
Iowa,  550,  143  N.  W.  508;  State  v.  Howard,  127  La.  435,  53  South.  677, 
The  operation  of  the  law  governing  juvenile  delinquents  is  not  suspended 
merely  because  the  delinquent  enters  into  the  marriage  relation.  Stoker  v. 
Gowans,  45  Utah,  556,  147  Pac.  911,  Ann.  Cas.  1916E,  1025.  See,  also, 
McPherson  v.  Day,  162  Iowa,  251,  144  N.  W.  4.  Though  a  woman  has  reached 
1{<  years  of  age  and  is  married,  nevertheless,  under  Juvenile  Court  Act,  St. 
1909,  p.  213,  and  as  amendedTiy  St.  1915,  p.  1225,  juvenile  court  may  control 
her  as  a  delinquent  person  until  she  reaches  the  age  of  21-  Ex  parte  Willis, 
30  Cal.  App.  188,  157  Pac.  819.  But  compare  Ex  parte  Lewis,  3  Cal.  App.  738, 
86  Pac.  996.  In  Kentucky  it  is  held  that  the  age  of  the  child  to  be  determined 
as  of  the  time  of  the  commission  of  the  offense  and  not  as  of  the  time  of  the 
indictment  or  trial.  Mattingly  v.  Commonwealth,  171  Ky.  222,  188  S.  W.  370. 
But  compare  State  v.  Ebarbo,  143  La.  591,  78  South.  973. 

20  Ex  parte  Sharp,  15  Idaho,  120,  96  Pac.  563,  18  L.  R.  A.   (N.  S.)  886; 
Childress  v.  State,  133  Tenn.  121,  179  S.  W.  643 ;   Mill  v.  Brown,  31  Utah,  473, 
88  Pac.  609,  120  Am.  St.  Rep.  935;    Mills  v.  State,  77  Tex.  Cr.  R.  129,  177 
S.  W.  492.     The  general  purpose  of  the  juvenile  act  is  to  provide  for  the 
welfare  of  neglected  and  delinquent  children,  by  placing  the  state,  as  far  as 
possible,  in  loco  parentis,  with  a  view  to  their  information.     State  v.  Eisen, 
53  Or.  297,  99  Pac.  282,  100  Pac.  257.    Proceedings  before  a  juvenile  court  in 
delinquency  are  in  the  nature  of  special  civil  actions.    Ogden  v.  State,  162 
Wis.  500,  156  N.  W.  476.    But  see  Miller  v.  State,  82  Tex.  Cr.  R.  495,  200  S. 
W.  389. 

21  In  re  Turner,  94  Kan.  115,  145  Pac.  871,  Ann.  Cas.  1916E,  1022;   Weber 
v.  Doust,  84  Wash.  330,  146  Pac.  623,  reversing  on  rehearing  81  Wash.  668, 
143  Pac.   148;    Ex  parte  Powell,  6  Okl.   Cr.  495,   120  Pac.   1022;    Juvenile 
Court  of  Shelby  County  v.  State,  139  Teun.  549,  201  S.  W.  771,  Ann.  Cas. 
1918D,   752. 

22  State  v.  Dunn,  53  Or.  304,  99  Pac.  278,  100  Pac.  .258;    State  v.  Eisen,  53 
Or.  297,  99  Pac.  2S2,  100  Pac.  257 ;   People  v.  Turja,  157  Mich.  532,  122  N.  W. 
177;    In  re  Lundy,  82  Wash.  148,  143  Pac.  885,  Ann.  Cas.  1916E,  1007.     Ill 
so  far  as  they  restrain  the  liberty  of  the  child,  the  statutes  should  be  strictly 


§§  194-198)  PRIVILEGES  AND  DISABILITIES  465 

PRIVILEGES  AND  DISABILITIES 

194.  Infants  are  favorites  of  the  law,  which,  for  their  protection, 

has  conferred  upon  them  certain  privileges  and  has  im- 
posed upon  them  certain  disabilities. 

195.  CAPACITY  TO  HOLD  OFFICE.    An  infant  can  hold  an  of- 

fice which  is  purely  ministerial,  but  not  one  requiring  the 
exercise  of  discretion,  or  involving  financial  responsibility. 

196.  CAPACITY  TO  MAKE  WILL.    At  common  law  the  will  of 

a  male  at  14,  and  of  a  female  at  12,  years  of  age,  was  valid 
as  to  personalty,  but  an  infant  could  not  make  a  valid  will 
of  real  estate. 

197.  CAPACITY  TO  SUE  AND  DEFEND.     An  infant  cannot 

sue  in  person  or  by  an  attorney,  but  only  by  guardian  or 
next  friend;  and,  when  sued,  he  cannot  appear  in  person, 
by  attorney  or  next  friend,  but  only  by  a  general  guardian 
or  by  guardian  ad  litem.  In  most  states  the  appointment  , 
of  the  next  friend  or  guardian  ad  litem  is  regulated  by 
statute.  Where  an  infant  is  sued,  and  has  appeared  by 
guardian  ad  litem,  he  is  bound  by  a  judgment  at  law  and 
decree  in  equity  as  fully  as  an  adult. 

198.  INFANTS  AS  WITNESSES.    An  infant  is  competent  to  tes- 

tify as  a  witness  if  he  understands  the  nature  of  an  oath, 
but  not  otherwise. 

To  protect  infants  from  the  injuries  which  because  of  their  inex- 
perience and  immature  mental  capacity,  might  arise  from  their  own 
acts,  or  the  acts  of  designing  adults,  the  law  has  thrown  its  pro- 
tection around  them  in  the  form  of  various  privileges  and  dis- 
abilities. The  principal  of  these  is,  of  course,  the  privilege  of 
avoiding  their  contracts  and  the  disability  to  bind  themselves  by 
their  agreements  under  certain  circumstances — a  branch  of  the 
subject  to  be  treated  at  length  hereafter.23  Infants'  rights  are  not 
superior  to  those  of  adults,  and  superior  equities  of  an  adult  will 
not  be  defeated  merely  because  the  adversary  party  is  an  infant; 

construed.  In  re  Lundy,  f?upra.  Statutes  concerning  infants  are  entitled 
to  favorable  and  liberal  construction,  and  it  is  not  a  valid  objection  to  them 
that  within  reasonable  limits  they  may  deprive  children  of  their  liberty  or 
their  parents  of  their  custody.  State  v.  Cagle,  111  S.  O.  548,  96  S.  E.  291. 
28  Post,  p.  471. 

TIFF.P.&  D.REL.(3o  ED.)— 30 


466  INFANTS  (Ch.  14 

the  principal  difference  between  the  two  classes  being  that  the 
rights  of  an  infant  will  always  be  protected  by  the  court,  while 
adults  must  protect  their  own  rights.24  So,  too,  an  infant  is  bound 
by  all  constitutional  and  valid  laws,  just  as  all  other  persons  are.25 
There  are,  however,  certain  privileges  and  disabilities  of  a  general 
nature,  almost  universally  regarded  as  necessarily  incident  to  the 
status  of  infancy.26  Thus,  in  the  absence  of  any  positive  provisions 
to  the  contrary,  an  infant  will  not  be  prejudiced  by  lapse  of  time  2T 
or  laches.28  So,  too,  it  has  been  generally  held  that  the  doctrine 
of  estoppel  has  no  application  to  infants,29  unless  the  conduct  of 
the  infant  was  intentionally  fraudulent.30  And,  inasmuch  as  the 

2.4  In  re  Shreve,  87  N.  J.  Eq.  7,  710.  103  Atl.  683.. 

20  Johnson  v.  Kennecott,  Copper  Corporation,  5  Alaska,  571. 

2«  Capacity  to  marry,  see  ante,  p.  21. 

27  Grimsby  v.  Hndnell,  76  Ga.  378,  2  Am.  St  Rep.  46;    Calhoon  v.  Balrd,  3 
A.  K.  Marsh.  (Ky.)  168;    Rector  v.  Rector,  3  Oilman  (111.)  105:    Parker  v. 
Ricks,  114  La.  942,  38  South.  687 ;   Taylor  v.  Leonard,  94  Ark.  122.  126  S.  W. 
387;   Brown  v.  Hooks,  133  Ga.  345,  65  S.  E.  780;   Coe  v.  Sloan,  16  Idaho,  49, 
100  Pac.  354;    Cobb  v.  Klosterman,  58  Or.  211,  114  Pac.  96;    Cameron  v. 
Hicks,  141  N.  C.  21,  53  S.  E.  728,  7  L.  R.  A.  (N.  S.)  407 ;   Bess  Mar  Realty  Co. 
v.  Capell  (Sup.)  164  N.  Y.  Supp.  803 ;    Hays  v.  Hinkle  (Tex.  Civ.  App.)  193 
S.  W.  153;    Meurin  v.  Kopplin  (Tex.  Civ.  App.)  100  S.  W.  984.     But,  if  the 
statute  of  limitations  has  commenced  to  run  in  favor  of  title  by  adverse 
possession,  the  running  of  such  statute  is  not  tolled  upon  the  death  of  the 
person  in  possession  because  of  the  minority  of  the  party  claiming  under 
him.    Wood  v.  Bapp  (S.  D.)  169  N.  W.  518 ;   Armstrong  v.  Wilcox,  57  Fla.  30, 
49  South.  41,  131  Am.  St.  Rep.  1080 ;   Mullen  v.  Manhattan  Ry.  Co.,  124  App. 
Div.  295,  108  N.  Y.  Supp.  852,  affirmed  195  N.  Y.  539,  88  N.  E.  1126;   Dunlap 
v.  Robinson,  87  S.  C.  577,  70  S.  E.  313 ;    Sandmeyer  v.  Dolijsi  (Tex.  Civ.  App.) 
203  S.  W.  113;   Babcock  Lumber  &  Land  Co.  v.  Ferguson  (D.  C.)  243, Fed.  623. 

28  Smith  v.  Sackett,  5  Oilman  (111.)  534;  Northern  v.  Scruggs,  118  Miss.  353, 
79  South.  227. 

2»Lackman  v.  Wood,  25  Cal.  147;  Sims  v.  Everhardt,  102  U.  S.  300,  26 
L.  Ed.  87 ;  Harmon  v.  Smith  (C.  C.)  38  Fed.  482 ;  Gillespie  v.  Nabors,  59  Ala. 
441,  31  Am.  Rep.  20;  Mierriam  v.  Cunningham,  11  Cush.  (Mass.)  40;  New 
York  Building  Loan  &  Banking  Co.  v.  Fisher,  23  App.  Div.  363,  48  N.  Y. 
Supp.  152;  Underwood  v.  Deckard,  34  Ind.  App.  198,  70  N.  E.  383;  Headley 
v.  Hoopengarner,  BO  W.  Va.  626,  55  S.  E.  744 ;  Kirkham  v.  Wheeler-Osgood 
Co.,  39  Wash.  415,  81  Pac.  869;  Raymond  v.  General  Motorcycle  Sales  Co., 
230  Mass.  54,  119  N.  E.  359;  Gappmayer  v.  Wilkinson  (Utah)  177  Pac.  763; 
Gibney  v.  Allen,  156  Mich.  301,  120  N.  W.  811 ;  Tobin  v.  Spaun,  85  Ark.  556, 
109  S.  W.  534,  16  L.  R.  A.  (N.  S.)  672 ;  Hlarper  v.  Utsey  (Tex.  Civ.  App.)  97  S. 
\V.  508.  In  the  absence  of  bad  faith,  neither  the  doctrine  of  estoppel  nor  that 
of  waiver  applies  to  minors.  Cowie  v.  Strohemeyer,  150  Wis.  401,  136  N.  W. 
956,  137  X.  W.  778. 

so  Headley  v.  Hoopengarner,  CO  W.  Va.  626,  55  S.  E.  744;  Harper  v.  Utsey 
(Tex.  Civ.  App.)  97  S.  W.  508 ;  Ostrander  v.  Quin,  84  Miss.  230,  36  South.  257, 
105  Am.  St.  Rep.  426;  Lake  v.  Perry,  95  Miss.  550,  49  South.  569;  Fowler 
v.  Alabama  Iron  &  Steel  Co.,  164  Ala.  414,  51  South.  393;  Turner  v.,  Stewart, 


§§  194-198)  PRIVILEGES  AND  DISABILITIES  467 

infant  is  not  bound  by  an  estoppel,  it  has  also  been  held  that  he 
cannot  urge  it  against  an  adult.31  An  infant  may  act  as  agent,32 
but  in  some  jurisdictions  he  cannot  appoint  an  agent  or  attorney 
in  fact.33  It  has  been  held  in  some  jurisdictions  that  an  infant  may 
act  as  trustee,34  though  there  are  English  authorities  to  the  con- 
trary.85 

Capacity  to  Hold  Office 

An  infant  may  hold  an  office  which  is  purely  ministerial,  but 
when  an  office  requires  the  exercise  of  discretion,  or  the  safe  dis- 
charge of  its  duties  involves  the  assumption  of  liabilities  which 
would  not  be  binding  on  an  infant,  he  cannot,  as  a  rule,  be  ap- 
pointed.38 He  cannot  hold  a  public  office  requiring  the  receipt  and 
disbursement  of  moneys,37  nor  can  he  act  as  administrator.38 

Capacity  to  Make  Will 

At  common  law,  males  at  14  years  of  age,  and  females  at  12, 
could  dispose  of  personal  property  by  will,39  but  neither  could  make 
a  valid  devise  of  real  estate  until  attaining  majority.40  By  stat- 
ute,41 in  England,  no  will  made  by  any  person  under  21  is  valid; 
and  the  age  at  which  a  will  can  be  made  in  this  country  is  now 

149  Ky.  15,  147  S.  W.  772 ;  GRAUMAN  MARX  &  CLINE  CO.  v.  KRIENITZ, 
142  Wis.  556,  126  N.  W.  50,  Cooley  Cas.  Persons  and  Domestic  Relations,  251. 
But  see  Beauchamp  v.  Bertig,  90  Ark.  351, 119  S.  W.  75,  23  L.  R.  A.  (N.  S.)  659. 

si  Montgomery   v.    Gordon,   51   Ala.   377. 

32  Talbot  v.  Bowen,  1  A.  K.  Marsh.  (Ky.)  436,  10  Am.  Dec.  747 ;  Sims  v. 
Gunter,  201  Ala.  286,  78  South.  62.  Compare  United  States  Inv.  Corp.  v. 
Ulrickson,  84  Minn.  14,  86  N.  W.  613,  87  Am.  St.  Rep.  326. 

ss  See  post,  p.  473.     And  see  post,  p.   474. 

s*  As  an  infant  may  be  a  trustee,  equity  will  enforce  a  trust  as  to  property 
held  by  an  infant  as  trustee.  Clary  v.  Spain,  119  Va.  58,  89  S.  E.  130.  And 
see  Sims  v.  Gunter,  201  Ala.  286,  78  South.  62. 

s  s  in  re  Porter,  25  L.  J.  Ch.  482;  In  re  Shelmerdine,  33  Law  J.  Ch.  474. 
And  see  Lewin,  Trusts,  37,  38. 

seCrosbie  v.  Hurley,  Ale.  &  N.  431:  Moore  v.  Graves,  3  N.  H.  408  (col- 
lecting cases).  One  otherwise  qualified  may  act  as  appraiser  of  land 
to  be  sold  on  execution,  though  he  be  under  21  years  of  age.  W|hite  v.  Laurel 
Land  Co.,  82  S.  W.  571,  26  Ky.  Law  Rep.  775.  Rehearing  denied  83  S.  W.  628, 
26  Ky.  Law  Rep.  1235. 

si  Claridge  v.  Evelyn,  5  Barn.  &  Aid.  81. 

sal  Williams,  Ex'rs,  479;  Ex  parte  Sergison,  4  Ves.  147;  In  re  Goods  of 
Duchess  of  Orleans,  1  Swab.  &  T.  253;  Rea  v.  Englesing,  56  Miss.  463; 
Briscoe  v.  Tarkington,  5  La.  Ann.  692. 

sal  Williams,  Ex'rs,  15;  Davis  v.  Baugh,  1  Sneed  (Tenn.)  477.  The  ques- 
tion is  not  free  from  doubt.  Co.  Litt.  89b. 

4»  Jarm.  Wills,  32;    4  Kent,  Comm.  505. 

«i  St.  1  Viet.  c.  26,  §  7. 


4G8  INFANTS  (Ch.  14 

generally  fixed  by  statutes,  some  of  which  are  similar  to  the  Eng- 
lish statute.  Some  of  the  statutes  make  a  distinction  between 
males  and  females,  and  some  make  a  distinction  between  real  and 
personal  property. 

Capacity  to  Sue  and  Defend 

While  the  rights  of  infants  may  be  enforced  in  courts  of  law, 
they  cannot  sue  in  person,  nor  are  they  competent  to  appoint  at- 
torneys to  appear  in  court  for  them.42  At  common  law  they  could 
only  sue  by  guardian.  By  the  statute  of  Westm.  II,  c.  15,  infants 
were  authorized  to  sue  by  prochein  ami,  or  next  friend,  and,  by  well- 
settled  practice,  may  generally  sue  either  by  guardian  or  by  next 
friend,48  though  in  many  jurisdictions  the  whole  matter  is  regu- 
lated by  statute.  The  next  friend  or  guardian  is  an  officer  of  the 
court,  rather  than  a  party  to  the  action,44  and,  in  theory,  is  appoint- 
ed by  the  court;  but  in  practice,  except  when  required  by  statute, 
the  obtaining  of  an  order  of  appointment  has  fallen  into  disuse,  as  it 
may  subsequently  be  obtained  if  the  authority  to  appear  is  ques- 
tioned.48 His  authority  begins  with  the  commencement  of  the 

421  Co.  Litt.  135b;  Bartholomew  v.  Dighton,  Cro.  Eliz.  424;  Gilbert  v. 
Mazerat,  121  La.  35,  46  South.  47;  Thurston  v.  Tubbs,  250  111.  540,  95  N.  E, 
479,  Ann.  Cas.  1912B,  375 ;  Miles  v.  Boyden,  3  Pick.  (Muss.)  213 ;  Wainwright 
v.  Wilkinson.  62  Md.  146;  Clark  v.  Turner,  1  Root  (Conn.)  200;  Bennett  v, 
Davis,  6  Cow.  (N.  Y.)  393;  Hockey  v.  Grey,  2  Johns.  (N.  Y.)  192.  It  has 
been  held  that  a  minor  who  has  been  emancipated  does  not  need  a  guardian 
ad  litem  to  bring  an  action. 

« i  Bl.  Comm.  464 ;  Deford  v.  State,  30  Md.  179 ;  Barwick  v.  Rackley,  45 
Ala.  215 ;  Brown  v.  Hull,  16  Vt  673 ;  Judson  v.  Blanchard,  3  Conn.  579 ;  Hurt 
v.  Railroad  Co.,  40  Miss.  391;  Heath  v.  Maddock,  81  N.  J.  Eq.  469,  86  Atl. 
945,  affirmed  82  N.  J.  Eq.  366,  91  Atl.  1069;  Scott  v.  Royston,  223  Mo.  568. 
123  S.  W.  454 ;  Turman  Cooperage  Co.  v.  Shelton,  136  Ark.  570,  207  S.  W.  42 ; 
Simpson  v.  Alexander,  6  Cold.  (Tenn.)  619.  If,  pending  the  action,  the  minor 
arrives  at  his  majority,  he  may  at  his  election  assume  control  of  the  prose- 
cution or  defense  in  his  Individual  capacity.  BERNARD  v.  PITTSBURG 
COAL  CO.,  137  Mich.  279,  100  N.  W.  396,  Cooley  Cas.  Persons  and  Domestic 
Relations,  246 ;  Webb  v.  Harris,  32  Okl.  491,  121  Pac.  1082,  Ann.  Cas.  1914A, 
602;  Slafter  v.  Savage,  89  Vt.  352,  95  Atl.  790;  Mahoney  v.  Park  Steel  Co., 
217  Pa.  20,  66  Atl.  90 ;  Ohio  Valley  Tie  Co.  v.  Hayes,  180  Ky.  469,  203  S.  W. 
193.  And  see  Johnson  v.  Alexander  (Okl.)  167  Pac.  989. 

"Davies  v.  Lockett,  4  Taunt.  765;  Klaus  v.  State,  54  Miss.  644;  Bartlett 
v.  Batts,  14  Ga.  539 ;  Baltimore  &  O.  R.  Co.  v.  Fitzpatrick,  36  Md.  619.  And 
therefore  he  may  be  removed  by  the  court  at  any  time  for  cause.  Barwick 
v.  Rackley,  45  Ala.  215 ;  Deford  v.  State,  30  Md.  179 ;  Simpson  v.  Alexander, 
6  Cold.  (Tenn.)  619. 

*5  Guild  v.  Cranston,  8  Gush.  (Mass.)  506;  Judson  v.  Blanchard,  3  Conn. 
579;  Williams  v.  Cleaveland,  76  Conn.  426.  56  Atl.  850;  Barwick  v.  Rackley, 
45  Ala.  215 ;  Deford  v.  State,  30  Md.  179 ;  Klaus  v.  State,  54  Miss.  644 ;  Rima 


§§  194-198)  PRIVILEGES   AND  DISABILITIES  469 

action,  and  he  cannot  sue  when  a  demand  is  necessary  before  suit.48 
In  the  appointment  of  the  next  friend,  the  courts  will  generally  re- 
spect the  claim  of  a  father,  as  the  natural  guardian  of  his  child,  to 
represent  the  infant,47  unless  his  interest  is  adverse,48  but  relation- 
ship is  not  a  requisite  in  a  next  friend.49 

When  an  infant  is  sued  he  cannot  appear  in  person  or  by  attor- 
ney,60 or  by  next  friend,61  but  only  by  guardian.52  If  the  infant 
already  has  a  general  guardian,  it  is  his  duty  to  appear  for  the  in- 
fant,53 unless  his  interest  is  adverse;64  but,  if  no  general  guardian 
has  been  appointed,  a  special  guardian,  known  as  a  "guardian  ad 
litem,"  must  be  appointed  by  the  court  to  represent  the  infant  in 
the  action.66  The  appointment  and  duties  of  a  guardian  ad  litem 
are  regulated  by  statute  in  most  of  the  states.  The  failure  to 

v.  Iron  Works,  120  N.  T.  433,  24  N.  E.  940;  Bartlett  v.  Batts,  14  Ga.  539. 
By  statute,  a  formal  order  of  appointment  is  often  required.  But  the  ab- 
sence of  a  formal  order  is  not  fatal  to  the  appointment,  if  the  fact  appears 
by  recitals  or  reference  in  the  record.  Crane  v.  Stafford,  217  111.  21,  75  N.  E. 
424. 

* e  Miles  v.  Boyden,  3  Pick.  (Mass.)  213. 

47  Woolf  v.  Pemberton,  6  Ch.  Div.  19;    Rue  v.  Meirs,  43  N.  J.  Eq.  3J7,  12 
Atl.  369;    Donald  v.  City  of  Ballard,  34  Wash.  576,  76  Pac.  80.     But  see 
Gilbert  v.  Mazerat,  121  La.  35,  46  South.  47. 

48  Patterson  v.  Pullman,  104  111.  80. 

4»  Guild  v.  Cranston,  8  Cush.  (Mass.)  506;  Burns  v.  Wilson,  1  Mo.  App.  179; 
Bartlett  v.  Batts,  14  Ga.  539. 

so  Co.  Litt.  88b,  note;  Frescobaldi  v.  Kinaston,  2  Strange,  783;  Bullard  v. 
Spoor,  2  Cow.  (N.  Y.)  430;  Knapp  v.  Crosby,  1  Mass.  479;  Bedell's  Heirs  v. 
Lewis'  Heirs,  4  J.  J.  Marsh.  (Ky.)  562 ;  Starbird  v.  Moore,  21  Vt.  529 ;  Mar- 
shall v.  Wing,  50  Me.  62 ;  Wright  v.  McNatt,  49  Tex.  425. 

51  Fitzh.  Nat.  Brev.  27  H;   Bush  v.  Linthicum,  59  Md.  344:  Brown  v.  Hull, 
16  Vt.  673.     The  only  difference  between  the  functions  of  the  "next  friend" 
and  the  "guardian  ad  litem"  is  that  the  former  prosecutes,  and  the  latter 
defends,  for  the  minor.    Watts  v.  Hicks,  119  Ark.  621,  178  S.  W.  924. 

52  Mitchell  v.  Spaulding,  206  Pa.  220,  55  Atl.  968. 

ss  Mansur  v.  Pratt,  101  Mass.  60;  Cowan  v.  Anderson,  7  Cold.  (Tenn.)  284; 
Colt  v.  Colt  (C.  C.)  19  Blatchf .  399,  48  Fed.  385 ;  Hughes  v.  Sellers,  34  Ind. 
337 ;  Smith  v.  McDonald,  42  Cal.  484 ;  Nunn  v.  Robertson,  80  Ark.  350,  97  S. 
W.  293,  Ann.  Cas.  1913E,  1197. 

54  Owens  v.  Gunther,  75  Ark.  37,  86  S.  W.  851,  5  Ann.  Cas.  130;   Adams  v. 
De  Dominques,  129  Ky.  599,  112  S.  W.  663. 

55  Bac.  Abr.  "Guardian,"  B  4;    Roberts'  Widow  v.  Stanton,  2  Munf.  (Va.) 
129,  5  Am.  Dec.  463;    Stinson  v.  Pickering,  70  Me.  273;    Wells  v.  Smith,  44 
Miss.  296;    Simmons  v.  Arnim  (Tex.  Civ.  App.)  192  S.  W.  184;    Stewart  v. 
Parr,  74  W.  Va.  327,  82  S.  E.  259 ;  GRAUMAN,  MARX  &  CLINE  CO.  v.  KRIEN- 
ITZ,  142  Wis.  556,  126  N.  W.  50,  Cooley  Cas.  Persons  and  Domestic  Relations, 
251.    Wherever  the  personal  or  property  rights  of  an  infant  are  involved  in  a 
legal  proceeding,  the  court  must  appoint  a  guardian  ad  litem  for  the  protec- 
tion of  such  rights.    Mechling  v.  Meyers,  284  111.  484,  120  N.  E.  542. 


470  INFANTS  (Ch.  14 

appoint  a  guardian  ad  litem  is,  apart  from  statutory  regulations,  an 
error  which  may  be  cured  within  a  limited  time  after  appearance :  " 
but,  when  no  guardian  ad  litem  has  been  appointed,  a  judgment 
rendered  under  such  circumstances  is  voidable,07  though  valid  until 
set  aside.88  Likewise,  a  decree  in  equity  rendered  against  an  In- 
fant, after  due  service  of  process  and  appearance  by  guardian  ad 
litem,  is  binding  on  him  until  reversed,  and  is  only  reversible  for 
fraud,  collusion,  or  error.59 

Infants  as  Witnesses 

At  common  law  there  is  no  age  under  which  an  infant  is  incom- 
petent to  testify  as  a  witness.  The  only  rule  is  that  he  must  be  of 
sufficient  intelligence  to  understand  the  nature  of  an  oath,  and  the 
solemn  responsibility  which  rests  upon  him  to  tell  the  truth. 
Above  the  age  of  14  years  an  infant  is  presumed  to  be  competent, 
though,  of  course,  the  presumption  may  be  rebutted  by  showing 
that  he  does  not  understand  the  nature  of  an  oath.  If  he  is  under 
14  years  of  age  he  is  presumed  to  be  incompetent,  and  his  compe- 
tency must  be  established  to  the  satisfaction  of  the  court  before 
he  can  be  allowed  to  testify.60  A  child  of  6  years  has  been  allowed 
to  testify.  Though  there  is  some  authority  to  the  contrary,61  by 
the  weight  of  opinion,  when  a  child,  on  being  examined  as  to  his 

5«  Nicholson  v.  Wilborn,  13  Ga.  467. 

57  O'Hara  v.  McConnell,  93  U.  S.  150,  23  L.  Ed.  840;  Austin  v.  Trustees, 
8  Mete.  (Mass.)  196,  41  Am.  Dec.  497;  Walkenhorst  v.  Lewis,  24  Kan.  420; 
Moore  v.  McEwen,  5  Serg.  &  R.  (Pa.)  373;  Barber  v.  Graves,  18  Vt.  290; 
Hanlin  v.  Burk  Bros.  Meat  &  Provision  Co.,  174  Mo.  App.  462,  160  S.  W.  547 ; 
Conway  v.  Clark,  177  Ala.  99,  58  South.  441;  Dudley  v.  Dudley,  126  Ark. 
182,  189  S.  W.  838;  Manning  v.  Boylinson.  68  Pa.  Super.  Ct.  512;  Weiss  v. 
Coudrey,  102  Mo.  App.  65,  76  S.  W.  730 ;  WEAVER  v.  GLENN,  104  Va.  443,  51 
S.  E.  835,  Cooley  Cas.  Persons  and  Domestic  Relations,  247.  See,  also,  Mc- 
Murtry  v.  Fairley,  194  Mo.  502,  91  S.  W.  902,  holding  that,  where  an  infant 
defendant  in  partition  was  not  properly  served  with  process,  the  court  was 
without  authority  to  appoint  a  guardian  ad  litem  for  him,  and  the  judgment 
as  to  him  was  void. 

ss  Colt  v.  Colt,  111  U.  S.  566,  4  Sup.  Ct.  553,  28  L.  Ed.  520;  Austin  v.  Trus- 
tees, S  Mete.  (Mass.)  196,  41  Am.  Dec.  497 ;  England  v.  Garner,  90  N.  C.  197 ; 
Bernecker  v.  Miller,  4-1  Mo.  102;  Walkenhorst  v.  Lewis,  24  Kan.  420. 

s»l  Daniell,  Ch.  Prac.  205;  Gregory  v.  Molesworth,  3  Atk.  626;  Ralston 
v.  Lahee,  8  Iowa,  17,  74  Am.  Dec.  291 ;  Rivers  v.  Durr,  46  Ala.  418. 

«o  1  Greenl.  Ev.  §  367;  Rose.  Cr.  Ev.  94;  Reg.  v.  Hill,  5  Cox,  Cr.  Cas.  259; 
State  v.  Richie,  28  La.  Ann.  327,  26  Am.  Rep.  100;  Kendall  v.  May,  10  Allen 
(Mass.)  64 ;  Carter  v.  State,  63  Ala.  52,  35  Am.  Rep.  4 ;  McGuire  v.  People,  44 
Mich.  286,  6  N.  W.  669,  38  Am.  Rep.  265. 

«i  Rex  v.  Williams,  7  Car.  &  P.  320;   Reg.  v.  Nicholas,  2  Car.  &  K.  246. 


§  199)  CONTRACTS   OF  INFANTS  471 

competency,  does  not  appear  to  understand  the  nature  of  an  oath, 
and  is  of  sufficient  intelligence  to  understand  if  properly  instructed, 
the,  trial  or  proceeding  may,  in  the  discretion  of  the  judge,  be 
postponed  to  allow  such  instruction.82  As  a  rule,  the  question  of 
an  infant's  competency  as  a  witness  is  addressed  to  the  sound  dis- 
cretion of  the  trial  court,  and  its  ruling  will  not  be  interfered  with, 
or  cause  a  reversal  oi;  the  judgment  based  on  the  infant's  testi- 
mony, except  in  a  clear  case.63  But  the  ruling  is  reviewable,  and 
will  be  ground  for  a  reversal  if  it  appears  that  the  child  was  mani- 
festly ignorant  of  all  religious  sanction.64 

CONTRACTS  OF  INFANTS 

199.  The  contracts  of  an  infant  are  either  void,  voidable,  or  valid. 
Thus — 

(a)  It  was  formerly  held  that  all  contracts  of  an  infant  which 

are  manifestly  to  his  prejudice  are  absolutely  void;  and 
in  some  states,  still,  powers  of  attorney,  appointments  of 
an  agent,  contracts  of  suretyship,  and  bonds  with  a  pen- 
alty are  held  void.  The  tendency  now  is  to  hold  no  con- 
tract void. 

(b)  Where  a  contract  is  not  void,  nor  valid,  as  hereafter  ex- 

plained, it  is  simply  voidable  at  the  infant's  option.  Most 
contracts  are  within  this  class. 

(c)  The  following  contracts  are  valid,  and  bind  the  infant  as 

well  as  the  adult: 

(1)  Contracts  created  by  law  or  quasi  contracts. 

(2)  Contracts  for  necessaries.     By  the  better  opinion,  these 

are  contracts  created  by  law. 

(3)  Contracts  entered  into  under  direction  or  authority  of 

a  statute. 

(4)  Contracts  made  in  order  to  do  what  he  was  legally 

bound  to  do,  and  could  have  been  compelled  to  do. 

(5)  Contracts  entered  into  by  him  in  a  representative  ca- 

pacity. 


«2  Com.  v.  Lynes,  142  Mass.  577.  8  N.  E.  408,  56  Am.  Rep.  709. 
es  McGuire  v.  People,  44  Mich.  286,  6  N.  W.  669,  38  Am.  Rep.  265. 
6*Rader  v.  Adamson,  37  W.  Va.  585,  16  S.  E.  808;    Season  v.  State,  72 
Ala..  191. 


472  INFANTS  (Ch.  14 

(6)  In  some  jurisdictions  an  executed  contract  is  binding 
upon  the  infant  where  he  has  received  a  substantial 
benefit  under  it,  and  cannot  place  the  other  party  in 
statu  quo.  As  to  this,  however,  there  is  much  doubt, 
and  the  weight  of  authority  is  the  other  way. 

Of  the  various  privileges  conferred  and  disabilities  imposed  on 
infants,  the  most  important  is  the  privilege  of  avoiding  their  con- 
tracts or  the  disability  to  bind  themselves  by  their  contracts,  un- 
der certain  circumstances.85  The  contracts  of  infants  are  either 
void,  voidable,  or  valid — "void"  being  used  in  the  sense  of  void  for 
all  purposes,  and  incapable  of  ratification ;  "voidable,"  in  the  sense 
of  voidable  at  the  option  of  the  infant;  and  "valid,"  in  the  sense  of 
binding  on  the  infant. 

Void  and  Voidable  Contracts 

There  is  much  confusion  among  the  decisions  in  regard  to  in- 
fants' contracts,  arising  from  the  failure  to  use  the  words  "void" 
and  "voidable"  in  a  uniform  sense;  "void"  bejng  used  in  many 
cases  to  mean  simply  not  enforceable,  and  in  others  to  mean  not 
capable  of  ratification.  But,  aside  from  this,  there  is  great  incon- 
sistency among  the  cases  as  to  what  contracts  are  void,  and  what 
are  voidable;  a  gradual  change  having  taken  place  in  most  juris- 
dictions in  favor  of  holding  infants'  contracts  voidable  rather  than 
void.  Many  contracts  which  would  formerly  have  been  held  void 
are  now  held  merely  voidable.  The  object  of  the  law  being  to  pro- 
tect the  infant  from  dangers  peculiar  to  infancy,  it  is  considered 
that  this  object  is  fully  attained  by  leaving  it  for  him  to  decide 
whether  or  not  he  will  be  bound  on  reaching  his  majority.86 

Keane  v.  Boycott 87  is  a  leading  case  representing  the  old  rule. 

es  Generally  speaking,  and  subject  to  certain  exceptions  to  be  discussed 
hereafter,  infants  are  not  bound  by  their  contracts,  being  incapable  of  con- 
tracting. Lee  v.  Equitable  Life  Assur.  Soc.,  195  Mo.  App.  40,  189  S.  W.  1195 ; 
Daughterly  v.  Reveal,  54  Ind.  App.  71,  102  N.  E.  381.  The  fact  that  he  has 
no  parent  or  guardian  does  not  clothe  him  with  power  to  contract.  Wickham 
v.  Torley,  136  Ga.  594,  71  S.  E.  881,  56  L.  R.  A.  (N.  S.)  57.  And  in  respect 
of  the  power  to  contract  the  law  makes  no  distinction  between  an  infant  of 
tender  years  and  one  who  has  almost  attained  his  majority,  except  in  so  far 
as  the  rules  may  be  modified  by  statute.  Ex  parte  McFerren,  184  Ala.  223, 
63  South.  159,  47  L.  R.  A.  (N.  S.)  543,  Ann.  Cas.  1915B,  672,  reversing  Edge- 
wood  Highland  Land  CO.  v.  McFerren,  9  Ala.  App.  275,  63  South.  157. 

««  Whitney  v.  Dutch,  14  Mass.  457,  7  Am.  Dec.  229. 

«T  2  H.  Bl.  511. 


§  199)  CONTRACTS   OF  INFANTS  473 

In  that  case  the  doctrine  was  stated  to  be  (1)  that  where  the  court 
could  pronounce  the  contract  for  the  benefit  of  the  infant,  as  for 
necessaries,  it  was  good ;  (2)  that,  where  the  court  could  pronounce 
it  to  his  prejudice,  it  was  void;  (3)  that,  in  those  cases  where  the 
benefit  or  prejudice  was  uncertain,  the  contract  was  voidable  only. 
And  the  same  doctrine  has  been  laid  down  in  this  country.68  Ac- 
cording to  this  classification,  and  on  the  theory  of  manifest  prej- 
udice to  the  infant,  some  courts  hold  that  a  power  or  appointment 
of  attorney  by  an  infant  is  absolutely  void,  and  a  nullity.69  Some 
-courts  extend  the  rule  to  all  appointments  of  agents.70  And  the 
same  has  been  held  as  to  contracts  of  suretyship  and  obligations 
with  a  penalty  by  infants.71  In  some  states,  by  statute,  contracts 
relating  to  real  property  are  void,  if  the  infant  is  under  18  years 
of  age.72 

682  Kent,  Comm.  234;  Tucker  v.  Moreland,  10  Pet.  65,  9  L.  Ed.  345;  Rob- 
inson v.  Weeks,  56  Me.  102 ;  Dunton  v.  Brown,  31  Mich.  182 ;  Green  v.  Wild- 
ing, 59  Iowa,  679,  13  N.  W.  761,  44  Am.  Rep.  696.  In  Vent  v.  Osgood,  19  Pick. 
•(Mass.)  572,  it  was  said:  "Whether  a  contract  by  an  infant  be  void  or  void- 
able or  binding  is  frequently  a  question  of  very  difficult  solution.  If  it  be 
clearly  prejudicial  to  him,  it  is  void.  If  it  may  be  for  his  benefit,  or  to  his 
•damage,  it  is  voidable  at  his  election,  and  he  may  avoid  it  during  his  minor- 
ity, or  when  he  becomes  of  full  age.  If  the  contract  be  clearly  beneficial  to 
him,  he  is  bound."  An  infant's  contracts  cannot  be  enforced  against  him 
during  infancy,  if  not  beneficial  to  the  infant,  and  can  be  enforced  only  to 
the  extent  that  they  are  beneficial.  Covault  v.  Nevitt,  157  Wis.  113,  146  N.  W. 
1115,  51  L.  R.  A.  (N.  S.)  1092,  Ann.  Gas.  1916A,  959. 

6»  Saunderson  v.  Marr,  1  H.  Bl.  75;  Lawrence's  Lessee  v.  McArter,  10 
Ohio,  37;  Wainwright  v.  Wilkinson,  62  Md.  146;  Knox  v.  Flack,  22  Pa.  337; 
Waples  v.  Hastings,  3  Har.  (Del.)  403  (holding  that  a  warrant  of  attorney  to 
confess  judgment  is  void);  Pyle  v.  Cravens,  4  Iltt.  (Ky.)  17;  Bennett  v. 
Davis,  6  Cow.'  (N.  Y.)  393.  The  same  court  refused  to  follow  the  rule  in  the 
case  of  a  power  coupled  with  an  interest.  Duvall  v.  Graves,  7  Bush.  (Ky.) 
461. 

7<>Trueblood  v.  Trueblood,  8  Ind.  195,  65  Am.  Dec.  756;  Poston  v.  Wil- 
liams, 99  Mo.  App.  513,  73  S.  W.  1099;  Armitage  v.  Widoe,  36  Mich.  124; 
Flexner  v.  Dickerson,  72  Ala.  318 ;  Glass  v.  Glass,  76  Ala.  368 ;  Smoot  v.  Ryan, 
187  Ala.  396,  65  South.  828;  Weidenhammer  v.  McAdams,  52  Ind.  App.  98, 
98  N.  E.  883 ;  McDonald  v.  City  of  Spring  Valley,  285  111.  52,  120  N.  E.  476, 
2  A.  L.  R.  1359,  reversing  209  111.  App.  7.  But  see  post,  p.  474. 

71  Suretyship,  Maples  v.  Wightman,  4  Conn.  376,  10  Am.  Dec.  149.    Obliga- 
tions with  a  penalty,  Fisher  v.  Mowbray,  8  East,  330;    Baylis  v.  Dineley,  3 
Maule  &  S.  477. 

72  Comp.  Laws  N.  D.  1913,  §  4338 ;  Civ.  Code  Cal.  §  33.    See  Lee  v.  Hibernia 
Savings  &  Loan  Soc.,  177  Cal.  656,  171  Pac.  677;    Gruba  v.  Chapman,  36  S. 
D.  119,  153  N.  W.  929 ;   Hakes  Inv.  Co.  v.  Lyons,  166  Cal.  557,  137  Pac.  911 ; 
Jefferson  v.  Gallagher,  56  Okl.  405,  150  Pac.  1071.    Laws  Okl.  1909,  c.  13,  lim- 
iting right  of  married  minor  to  convey  real  estate  to  that  acquired  after 


474  INFANTS  (Ch.  14 

In  many  cases,  on  the  other  hand,  the  courts  have  rejected  this 
doctrine,  and  the  tendency  to-day  is  to  leave  it  for  the  infant  to 
pass  on  the  question  of  benefit  or  prejudice  on  reaching  his  ma- 
jority. Under  these  decisions,  all,  or  nearly  all,  contracts  of  infants, 
are  merely  voidable,73  without  regard  to  their  appearing  to  be  prej- 
udicial to  the  infant  or  otherwise,  excepting  certain  contracts  which 
are  binding  on  him.74  Thus,  in  Williams  v.  Moor,75  Baron  Parke 
said :  "The  promise  is  not  void  in  any  case  unless  the  infant 
chooses  to  plead  his  infancy."  And  in  a  recent  case  7e  it  was  said : 
"The  true  doctrine  now  seems  to  be  that  the  contract  of  an  infant 
is  in  no  case  absolutely  void.  An  infant  may,  as  a  general  rule, 
disaffirm  any  contract  into  which  he  has  entered;  but,  until  he 
does  so,  the  contract  may  be  said  to  subsist,  capable  of  being  made 
absolute  by  affirmance,  or  void  by  disaffirmance,  on  his  arriving 
at  age.  In  other  words,  infancy  confers  a  privilege,  rather  than 
imposes  a  disability."  According  to  this  doctrine,  some  of  the 
courts,  contrary  to  the  cases  heretofore  referred  to,  regard  powers 
of  appointments  of  attorneys,  and  all  appointments  of  agents,  mere- 


marriage,  does  not  apply  to  land  owned  by  married  minor  woman  before  its 
enactment.  Crump  v.  Guyer,  60  Okl.  222,  157  Pac.  321,  2  A.  L.  R.  331. 

-3  Morton  v.  Steward,  5  111.  App.  533;  Reed  v.  Lane,  61  Vt.  481,  17  Atl. 
796;  In  re  Huntenberg  (D.  C.)  153  Fed.  768;  Luce  v.  Jestrab,  12  N.  D.  548, 
97  N.  W.  848;  Helland  v.  Colton  State  Bank,  20  S.  D.  325,  106  N.  W.  60; 
COURSOLLE  v.  WEYERHATJSER,  69  Minn.  328,  72  N.  W.  697,  Cooley  Gas. 
Persons  and  Domestic  Relations,  249;  Jones  v.  Valentines'  School  of  Teleg- 
raphy, 122  Wis.  318,  99  N.  W.  1043 ;  Henderson  v.  Clark,  163  Ky.  192,  173  S. 
W.  367 ;  In  re  Farley,  213  N.  Y.  15,  106  N.  E.  756,  L.  R.  A.  1916D,  816,  Ann. 
Cas.  1916C,  494,  reversing  161  App.  Div.  63,  146  N.  Y.  Supp.  291 ;  Grievance 
Committee  v.  Ennis,  84  Conn.  594,  80  Atl.  767 ;  Clemmer  v.  Price,  59  Tex.  Civ. 
App.  S4,  125  S.  W.  604 ;  Casement  v.  Callaghau,  35  N.  D.  27,  159  N.  W.  77 ; 
Drummond  v.  Drummond  (Sur.)  171  N.  Y.  Supp.  477;  La  Rosa  v.  Nichols,  92 
N.  J.  Law,  375,  105  Atl.  201,  6  A.  L.  R.  412,  reversing  judgment  (Sup.)  La 
Rose  v.  Same,  91  N.  J.  Law,  355,  103  Atl.  390;  Sims  v.  Gunter,  201  Ala. 
286,  78  South.  62.  And  see  Harner  v.  Dipple,  31  Ohio  St.  72,  27  Am.  Rep. 
496 ;  Fetrow  v.  Wiseman,  40  Ind.  148 ;  Henry  v.  Root,  33  N.  Y.  526 ;  Holmes 
v.  Rice,  45  Mich.  142,  7  N.  W.  772;  Mustard  v.  Wohlford's  Heirs,  15  Grat. 
(Va.)  329,  76  Am.  Dec.  209;  Cole  v.  Pennoyer,  14  111.  158;  Illinois  Land  & 
Loan  Co.  v.  Bonner,  75  111.  315 ;  Bpzeman  v.  Browning,  31  Ark.  364 ;  Weaver 
v.  Jones,  24  Ala.  420;  Kendrick  v.  Neisz,  17  Colo.  506,  30  Pac.  245;  Pars. 
Cont.  295;  Pollock,  Cont.  52.  The  modern  rule  has  been  followed  in  regard 
to  all  classes  of  contracts.  For  collection  of  authorities  in  regard  to  particu- 
lar contracts,  see  22  Cyc.  pp.  527-538,  580-600. 

T*  Post,  p.  477. 

"  11  Mees.  &  W.  256. 

»•  Lemmon  v.  Beeman,  45  Ohio  St.  505,  15  N.  E.  476. 


§  199)  CONTRACTS   OF  INFANTS  475 

ly  voidable  by  the  infant  at  his  option.77  And  the  same  is  true  of 
contracts  of  suretyship  and  obligations  with  a  penalty.78  Except 
in  states  where  the  rule  has  been  changed  by  statute,79  the  cases 
generally  hold  that  an  infant's  conveyances  or  mortgages  of  real 
estate,  his  purchases  of  real  estate,  and  his  sales  mortgages,  and 
purchases  of  personal  property,  merely  voidable.80  The  same  may 
be  said  of  most  other  contracts — partnership  agreements,81  agree- 

77  Whitney  v.  Dutch,  14  Mass.  457,  7  Am.  Dec.  229;   Benson  v.  Tucker,  212 
Mass.  60,  98  N.  E.  589,  41  L.  R.  A.  (N.  S.)  1219;    Hardy  v.  Waters,  38  Me. 
450;    Towle  v.  Dresser,  73  Me.  252;    Alsworth  v.  Cordtz,  31  Miss.  32.     See. 
also,  Ferguson  v.  Railway  Co.,  73  Tex.  344,  11  S.  W.  347;    Simpson  v.  Pru- 
dential Ins.  Co.,  184  Mass.  348,  68  N.  E.  673,  63  L.  R.  A.  741,  100  Am.  St. 
Rep.  560. 

78  Suretyship,  Owen  v.  Long,  112  Mass.  403;   Reed  v.  Lane,  61  Vt.  481,  17 
Atl.  796;    Fetrow  v.  Wiseman,  40  Ind.  148;    Williams  v.  Harrison,  11  S.  C. 
412;    Helland  v.  Colton  State  Bank,  20  S.  D.  325,  106  N.  W.  60;    Harner  v. 
Dipple,  31  Ohio  St.  72,  27  Am.  Rep.  496.    Bonds  with  a  penalty,  Mustard  v. 
Wohlford's  Heirs,  15  Grat.  (Va.)  329,  76  Am.  Dec.  209;    Weaver  v.  Jones,  24 
Ala.  420. 

7»  See  ante,  p.  473,  note  72. 

so  Cole  v.  Pennoyer,  14  111.  158;  Irvine  v.  Irvine,  9  Wall.  617,  19  L.  Ed. 
800;  Zouch  v.  Parsons,  3  Burrows,  1794;  Bigelow  v.  Kinney,  3  Vt.  353,  21 
Am.  Dec.  589;  Logan  v.  Gardner,  136  Pa.  588,  20  Atl.  625,  20  Am.  St.  Rep. 
939;  Henry  v.  Root,  33  N.  Y.  526;  .Callis  v.  Day,  38  Wis.  643;  Manning  v. 
Johnson,  26  Ala.  446,  62  Am.  Dec.  732 ;  French  v.  McAndrew,  61  Miss.  187 ; 
Tillery  v.  Land,  136  N.  C.  537,  48  S.  E.  824 ;  White  v.  Sikes,  129  Ga.  508,  59 
S.  E.  228,  121  Am.  St.  Rep.  228;  Tomczek  v.  Wieser,  58  Misc.  Rep.  46,  108 
N.  Y.  Supp.  784 ;  Lawder  v.  Larkin  (Tex.  Civ.  App.)  94  S.  W.  171 ;  Eldriedge 
v.  Hoefer,  52  Or.  241,  93  Pac.  246;  Robinson  v.  Allison,  192  Mo.  366,  91  S. 
W.  115 ;  Shaffer  v.  Detie,  191  Mo.  377,  90  S.  W.  131 ;  Hiles  v.  Hiles,  82  S.  W. 
580,  26  Ky.  Law  Rep.  824,  rehearing  denied  83  S.  W.  615,  26  Ky.  Law  Rep. 
1264;  Smith  v.  Smith's  Ex'r,  107  Va.  112,  57  S.  E.  577,  12  L.  R.  A.  (N.  S.) 
1184,  122  Am.  St.  Rep.  831,  12  Ann.  Cas.  857;  Hatton  v.  Bodan  Lumber  Co., 
57  Tex.  Civ.  App.  478,  123  S.  W.  163;  Strain  v.  Hinds,  277  111.  598,  115  N. 
E.  563;  Parrish  v.  Treadway,  267  Mo.  91,  183  S.  W.  580;  Merida  v.  Cum- 
mings  (Tex.  Civ.  App.)  115  S.  W.  613 ;  Hogan  v.  Utter,  175  N.  C.  332,  95  S. 
E.  565 ;  Appell  v.  Appell,  235  111.  37,  85  N.  E.  205 ;  Forsee's  Adm'x  v.  Forsee, 
144  Ky.  169,  137  S.  W.  836. 

siDunton  v.  Brown,  31  Mich.  182;  Kuipers  v.  Thorne,  182  111.  App.  28; 
Latrobe  v.  Dietrich,  114  Md.  8,  78  Atl.  983;  Gordon  v.  Miller,  111  Mo.  App. 
342,  85  S.  W.  943.  A  minor  who  has  entered  into  a  partnership  may  disaffirm 
the  partnership  agreement,  and  withdraw,  and  he  may  plead  his  infancy  as  a 
defense  against  personal  liability  for  the  firm. debts.  Shirk  v.  Shultz,  113 
Ind.  571,  15  N.  E.  12;  Dunton  v.  Brown,  31  Mich.  182;  Bush  v.  Linthicum, 
59  Md.  344;  Adams  v.  Beall,  67  Md.  53,  8  Atl.  664,  1  Am.  St.  Rep.  379; 
Yates  v.  Lyon,  61  N.  Y.  344 ;  Whittemore  v.  Elliott,  7  Hun  (N.  Y.)  518.  But 
he  cannot  withdraw  what  he  has  invested  in  the  business  from  the  claims  of 
firm  creditors.  Shirk  v.  Shultz,  supra ;  Adams  v.  Beall,  supra ;  Kitchen  v. 
Lee,  11  Paige  (N.  Y.)  107,  42  Am.  Dec.  101;  Page  v.  Morse,  128  Mass.  99; 


476  INFANTS  (Ch.  14 

ments  to  render  services,82  promissory  notes,88  indorsements  of  a 
bill  or  note,8*  lease  by  or  to  infant,86  submission  to  arbitration,8* 
settlement  of  disputed  boundary,87  compromise  of  action  or  claim,8* 
release  of  damages,89  promise  to  marry,90  or  subscription  to  cor- 
porate stock.91 

Skinner  v.  Maxwell,  66  N.  C.  45;  Furlong  v.  Bartlert,  21  Pick,  (Mass.)  401. 
In  Moley  v.  Brine,  120  Mass.  324,  it  was  held  that,  when  the  assets  of  the 
firm  are  not  sufficient  to  pay  the  partners  the  amount  invested  by  each  in 
full,  the  infant  partner  cannot  insist  on  payment  in  full,  but  is  only  entitled 
to  share  in  the  assets  in  proportion  to  the  amount  which  he  invested.  Aa 
infant  cannot,  as  against  his  partners,  insist  that  in  taking  the  partnership's 
accounts  he  shall  be  credited  with  profits  and  not  debited  with  losses,  and 
as  against  the  firm's  creditors  he  has  no  higher  rights  in  the  firm's  property 
than  an  adult  partner.  His  only  immunity  is  from  personal  liability.  Elm 
City  Lumber  Co.  v.  Haupt,  50  Pa.  Super.  Ct.  489. 

sz  Vent  v.  Osgood,  19  Pick.  (Mass.)  572;  Clark  v.  Goddard,  39  Ala,  164,  84 
Am.  Dec.  777 ;  Harney  v.  Owen,  4  Blackf.  (Ind.)  337,  30  Am.  Dec.  662 ;  Cain 
v.  Garner,  169  Ky.  633,  185  S.  W.  122,  L.  R,  A.  1916E,  628,  Ann.  Cas.  1918B, 
824 ;  Ping  Min.  &  Mill.  Co.  v.  Grant,  68  Kan.  732,  75  Pac.  1044.  The  rule  that 
no  promise  will  be  implied  to  pay  for  services  rendered  when  it  was  mutually 
understood  that  they  were  to  be  gratuitous  applies  to  rendition  of  services 
by  an  infant  to  an  adult.  Ramsdell  v.  Coombs  Aeroplane  Co.  (Sup.)  161  N.  Y. 
Supp.  360. 

88  Goodsell  v.  Myers,  3  Wend.  (N.  T.)  479 ;  Fetrow  v.  Wiseman,  40  Ind.  148 ; 
Wamsley  v.  Lindenberger,  2  Rand.  (Va.)  478 ;  Earle  v.  Reed,  10  Mete.  (Mass.) 
389 ;  Minock  v.  Shortridge,  21  Mich.  314 ;  Watson  v.  Ruderman,  79  Conn.  687, 
66  Atl.  515 ;  Darlington  v.  Hamilton  Bank,  63  Misc.  Rep.  289,  116  N.  Y.  Supp. 
678 ;  Wright  v.  Buchanan,  287  111.  468,  123  N.  E.  53 ;  Heffington  v.  Jackson, 
43  Tex.  Civ.  App.  560,  96  S.  W.  108. 

«*  Nightingale  v.  Withington,  15^  Mass.  272,  8  Am.  Dec,  101;  Willis  v. 
Trvambly,  13  Mass.  204 ;  Frazier  v.  Massey,  14  Ind.  382 ;  Briggs  v.  McCabe, 
27  Ind.  327,  89  Am.  Dec.  503;  Murray  v.  Thompson,  136  Tenn.  118,  188  S. 
W.  578,  L.  R.  A.  1917B,  1172. 

ss  Zouch  v.  Parsons,  3  Burrows,  1794;  Griffith  v.  Schwenderman,  27  Mo. 
412. 

*«  Jones  v.  Bank,  8  N.  Y.  228;  Millsaps  v.  Estes,  137  N.  C.  535,  50  S.  E. 
227,  70  L.  R.  A.  170,  107  Am.  St.  Rep.  496;  Barnaby  v.  Barnaby,  1  Pick. 
•  Mass.)  221. 

87  Brown  v.  Caldwell,  10  Serg.  &  R.  (Pa.)  114,  13  Am.  Dec.  660. 

s e  Ware  v.  Cartledge,  24  Ala.  622,  60  Am.  Dec.  489;  Baker  v.  Lovett,  6 
Mass.  78, '4  Am.  Dec.  88. 

8»  Worthy  v.  Jonesville  Oil  Mill,  77  S.  C.  69,  57  S.  E.  634,  11  L.  R.  A.  (X. 
S.)  690,  12  Ann.  Cas.  688;  Interstate  Coal  Co.  v.  Love,  153  Ky.  323,  155  S. 
W.  746 ;  Hollinger  v.  York  Rys.  Co.,  226  Pa.  419,  74  Atl.  344,  17  Ann.  Cas. 
571;  Chicago  Telephone  Co.  v.  Schulz,  121  111.  App.  573. 

»o  Holt  v.  Ward  Clarencieux,  2  Strange,  937;    Hunt  v.  Peake,  5  Cow.  (N. 

81  WULLER  v.  CHUSE  GROCERY  CO.,  147  111.  App.  224,  affirmed  241 
111.  398,  89  X.  E.  796,  28  L.  R.  A.  (N.  S.)  128.  132  Am.  St.  Rep.  216,  16  Ann. 
Cas.  522,  Cooley  Cas.  Persons  and  Domestic  Relations,  262. 


§  199)  CONTRACTS  OF  INFANTS  477 

Valid  Contracts 

Voidable  contracts  are  in  one  sense  valid — that  is,  they  are  valid 
until  avoided ; 92  but  the  term  "valid,"  as  used  in  reference  to  in- 
fants' contracts,  means  such  contracts  as  are  binding  on  the  infant 
as  well  as  on  the  contracting  party.  This  is  the  sense  in  which  the 
term  is  used  here.  While  most  contracts  made  by  an  infant  are 
voidable  by  him,  there  are  certain  contracts  which  bind. 

Quasi  contracts  or  contracts  created  by  law,  because  of  a  legal 
duty  on  the  part  of  the  party  bound,  are  as  binding  on  an  infant  as 
on  an  adult.  The  liability  of  a  husband  to  pay  for  necessaries  fur- 
nished to  his  wife  or  children,  and  the  liability  of  a  husband  to  pay 
his  wife's  antenuptial  debts,  are  imposed  on  infant  as  well  as  adult 
husbands.93  And  so  it  is  as  to  any  other  quasi  contractual  liabili- 
ty.9* These  kinds  of  obligation  do  not  depend  upon  the  consent  of 
the  person  bound,  but  are  imposed  by  law,  and  therefore  the  rea- 
sons for  which  an  infant  is  allowed  to  avoid  his  contracts  do  not 
apply.  As  will  be  seen,  the  liability  of  an  infant  for  necessaries 
furnished  him  is  really  a  quasi  contractual  liability,  and  might 
properly  be  treated  under  this  head.  The  importance  of  the  sub- 
ject, however,  makes  a  separate  treatment  advisable.95 

Contracts  made  by  an  infant  under  authority  or  direction  of  a 
statute96 — as  when  he  executes  a  bond  for  the  support  of  a  bastard 


Y.)  475,  15  Am.  Dec.  475 ;  Rush  v.  Wick,  31  Ohio  St.  521,  27  Am.  Rep.  523 ; 
Cannon  v.  Alsbury,  1  A.  K.  Marsh.  (Ky.)  76,  10  Am.  Dec.  709;  Warwick  v. 
Cooper,  5  Sneed  (Tenn.)  659.  In  McConkey  v.  Barnes,  42  111.  App.  511,  it  was 
held  that  a  statute  providing  that  persons  under  the  age  of  21  years  "may 
contract  and  be  joined  in  marriage"  does  not  remove  an  infant's  disability, 
so  as  to  render  him  liable  for  breach  of  his  promise  to  marry,  but  merely 
means  that  an  actual  marriage  by  an  infant  shall  be  valid. 

o  2  The  deed  of  a  minor  conveys  a  good  title.  Hatton  v.  Bodau  Lumber  Co., 
57  Tex.  Civ.  App.  478,  123  S.  W.  163.  A  minor's  declaration  of  trust  is  valid 
until  avoided.  Eldriedge  v.  Hoefer,  52  Or.  241,  93  Pac.  246,  94  Pac.  563,  96 
Pac.  1105.  The  mere  fact  a  grantee  in  a  deed  is  an  infant  does  not  prevent 
the  title  from  passing.  Rohwer  v.  District  Court  of  First  Judicial  Dist,  41 
Utah,  279,  125  Pac.  671. 

»3  Roach  v.  Quick,  9  Wend.  (N.  Y.)  238 ;  Cole  v.  Seeley,  25  Vt.  220,  60  Am. 
Dec.  258 ;  Butler  v.  Breck,  7  Mete.  (Mass.)  164,  39  Am.  Dec.  768 ;  Nicholson 
v.  Wilborn,  13  Ga.  467 ;  Cantine  v.  Phillips'  Adm'r,  5  Har.  (Del.)  428. 

»4  Post,  p.  47& 

»«  See  post,  p.  480. 

»6  Stanhope  v.  Shambow,  54  Mont.  360,  170  Pac.  752;  Clemmer  v.  Price,  59 
Tex.  Civ.  App.  84,  125  S.  W.  604.  See,  also,  Equitable  Trust  Co.  v.  Moss,  149 
App.  Div.  615,  134  N.  Y.  Supp.  533 ;  Hamm  v.  Prudential  Ins.  Co.,  137  App. 
Div.  504,  122  N.  Y.  Supp.  35. 


478  INFANTS  (Ch.  14 

child,97  gives  a  recognizance  for  appearance  in  qourt,98  enters  into 
a  contract  of  enlistment  in  the  army,89  or  makes  an  assignment  un- 
der a  statute  allowing  "every  person"  to  assign1 — cannot  be  avoid- 
ed by  him.  So,  too,  it  is  provided  by  statute  in  some  states  that  an 
infant  cannot  disaffirm  contracts  entered  into  with  one  who,  by 
reason  of  the  infant's  having  engaged  in  trade  or  business  as  an 
adult,  had  reason  to  believe  him  capable  of  contracting.2 

A  contract  executed  by  an  infant  which  the  law  could  have  com- 
pelled him  to  execute  is  binding,  and  cannot  be  avoided  by  him, 
though  actually  executed  without  the  intervention  of  the  law.3  It 
was  accordingly  held  in  the  leading  case  of  Zouch  v.  Parsons,4 
where  lands  had  been  conveyed  to  an  infant  as  security,  and  a  re- 
conveyance made  by  the  infant  on  payment  of  the  debt,  that  the  re- 
conveyance could  not  subsequently  be  avoided.  So,  where,,  a  fa- 
ther caused  lands  to  be  placed  in  his  minor  son's  name  to  defraud 
his  creditors,  and  thereafter  sold  the  lands  to  a  purchaser  for  a 
valuable  consideration,  and  the  infant  executed  a  deed  to  such 
purchaser,  it  was  held  that  the  infant  could  not  avoid  the  convey- 
ance on  coming  of  age.8  So,  where  an  infant  fraudulently  obtained 
the  legal  title  to  real  estate  under  such  circumstances  as  to  create 
a  constructive  trust  in  favor  of  another,  and  thereafter  deeded  the 
property  to  the  beneficiary,  it  was  held  that  he  could  not  disaffirm 
his  deed  in  execution  of  the  trust,  since  it  was  a  duty  which  a  court 
of  equity  would  have  compelled  him  to  perform.6  So,  gene/ally, 

»*  People  v.  Moores,  4  Denio  (N.  Y.)  518,  47  Am.  Dec.  272. 

»s  Tyler,  Inf.  §  122;  State  v.  Weatherwax,  12  Kan.  463;  Dial  v.  Wood,  9 
Baxt.  (Teun.)  296. 

»»  Rex  v.  Inhabitants  of  Rotherfield  Greys,  1  Barn.  &  C.  345;  U.  S.  v. 
Bainbridge,  1  Mason,  71,  83  Fed.  Cas.  No.  14,497 ;  In  re  Hearn  (D.  C.)  32  Fed. 
141 ;  Com.  v.  Murray,  4  Bin.  (Pa.)  4S7,  5  Am.  Dec.  412 ;  U.  S.  v.  Blakeney,  3 
Grat.  (Va.)  405;  Com.  v.  Gamble,  11  Serg.  &  R.  (Pa.)  93;  In  re  Higgins,  16 
Wis.  351. 

1  People  v.  Mullin,  25  Wend.  (N.  T.)  698. 

2  BEICKLER  v.  GUENTHER,  121  Iowa,  419,  96  N.  W.  895,  Cooley  Cas.  Per- 
sons and  Domestic  Relations,  256 ;   Southern  Cotton  Oil  Co.  v.  Dukes,  121  Ga. 
787,  49  S.  E.  788.     But  it  is  held  in  these  cases  that  the  infant  must  have 
been  carrying  on  business  of  his  own  and  as  a  regular  employment  for  a 
livelihood  or  profit.    An  infant  working  for  wages  is  not  engaged  in  business 
as  an  adult,  within  Civ.  Code  Ga.  1910,  §  4235.    Pearson  v.  White  &  Cochran, 
13  Ga.  App.  117,  78  S.  E.  864. 

a  Sims  v.  Gunter,  201  Ala.  286,  78  South.  62. 
*3  Burrows,  1801. 

»  Elliott  v.  Horn,  10  Ala.  348,  44  Am.  Dec.  488 ;  Prouty  v.  Edgar,  6  Iowa, 
353:  Starr  v.  Wright,  20  Ohio  St.  97. 

« -Nordholt  v.  Nordholt,  87  Cal.  552,  26  Pac.  599,  22  Am,  St.  Rep.  268, 


CONTRACTS   OF  INFANTS  479 

an  infant  cannot,  on  his  majority,  avoid  an  act  which  he  could  have 
been  compelled  to  perform.7 

When  an  infant  is  under  a  legal  obligation  to  do  an  act,  he  may 
bind  himself  by  a  fair  and  reasonable  contract  made  for  the  purpose 
of  discharging  the  obligation,  as  under  a  contract  for  necessaries 
furnished  his  wife  and  children,  where  the  parent  is  held  liable  for 
his  child's  support,8  or  on  a  promissory  note  given  for  such  neces- 
saries.9 Money  advanced  at  the  request  of  an  infant  to  procure 
his  release  from  arrest  for  a  debt  -incurred  for  necessaries,10  or  to 
pay  a  debt  for  necessaries,11  can  be  recovered  from  him.  An  agree- 
ment by  an  infant  with  the  mother  of  his  illegitimate  child,  to  sup- 
port it,  was  held  a  valid  claim  against  the  minor's  estate,  on  his  de- 
cease, as  being  an  agreement  to  perform  an  obligation  which  he 
was  legally  bound  to  perform.12  A  note  given  by  an  infant  in  set- 
tlement of  his  liability  for  a  tort  has,  on  the  same  principle,  been 
held  enforceable  against  him.13 

Acts  performed  by  an  infant  as  executor,  agent,  officer  of  a  cor- 
poration, or  in  any  other  representative  capacity,  which  do  not 
touch  his  own  interest,  but  which  are  in  the  exercise  of  authority 
intrusted  to  him,  are  binding.14  Such  a  contract  is  not  a  contract 
of  the  infant.  He  does  not  attempt  to  bind  himself.  There  is  no 
reason  why  he  should  not  act  as  agent  so  as  to  bind  another  who 
has  duly  authorized  him. 

In  some  jurisdictions  it  is  held  that,  if  the  contract  is  so  far  exe- 
cuted that  the  infant  has  received  the  consideration,  he  cannot  re- 
pudiate the  contract,  and  recover  what  he  has  paid,  unless  he  can 
and  does  -place  the  other  party  in  statu  quo.15  This  doctrine  is 
not  generally  accepted,  as  we  shall  presently  see,  in  cases  where 
the  consideration  cannot  be  returned.16 


72  Kent,  Comm.  242;   Tucker  v.  Moreland,  10  Pet.  58,  9  L.  Ed.  345;   Shel- 
don's Lessee  v.  Newton,  3  Ohio  St.  494 ;   Trader  v.  Jarvis,  23  W.  Va.  100. 
s  People  v.  Moores,  4  Denio  (N.  Y.)  518,  47  Am.  Dec.  272. 

9  Sawyer  v.  Cutting,  23  Vt.  486. 

10  Clarke  v.  Leslie,  5  Esp.  28. 
"Randall  v.  Sweet,  1  Denio  (N.  Y.)  460. 

12  Stowers  v.  Hollis,  83  Ky.  544;    Gavin  v.  Burton,  8  Ind.  69. 

is  Ray  v.  Tubbs,  50  Vt.  688,  28  Am.  Rep.  519. 

i*  Mete.  Cont.  66 ;  Schouler,  Dom.  Rel.  416 ;  Zouch  v.  Parsons,  3  Burrows, 
1794,  1802. 

IB  2  Kent,  Comm.  240 ;  Adams  v.  Beall,  67  Md.  53,  8  Atl.  664,  1  Am.  St. 
Rep.  379. 

is  Post,  p.  508. 


480  INFANTS  (Ch.  14 

LIABILITY  FOR  NECESSARIES 

200.  An  infant  is  liable  for  the  reasonable  value  of  necessaries  fur- 

nished to  him,  or  to  his  wife  or,  in  some,  but  not  all,  ju- 
risdictions, to  his  children,  where  he  refuses  or  neglects 
to  provide  for  them.  As  he  is  liable  only  for  the  reasonable 
value  of  the  necessaries  furnished  him,  he  cannot  bind 
himself  by  an  express  contract  of  such  a  nature  that  the 
consideration  cannot  be  inquired  into;  but,  if  the  consid- 
eration can  be  inquired  into,  an  express  contract  is  binding 
to  the  extent  of  the  value  of  the  necessaries. 

201.  The  infant  is  not  liable  at  law,  though  it  is  otherwise  in  equi- 

ty, for  money  borrowed  by  him,  though  expended  for 
necessaries ;  but  he  is  liable,  even  at  law,  where  the  lender 
applies  the  money  himself,  or  sees  it  applied,  in  payment 
for  necessaries,  or  pays  it  for  necessaries  already  furnished. 

202.  What  are  "necessaries"  will  depend  upon  the  circumstances 

of  the  particular  .case.  The  term  includes  whatever  is 
reasonably  needed  for  subsistence,  health,  comfort,  or  ed- 
ucation, taking  into  consideration  his  state,  station,  and 
degree  in  life.  The  term  does  not  include 

(a)  What  is  purely  ornamental. 

(b)  What  contributes  solely  to  pleasure. 

(c)  What  he  is  already  fully  supplied  with. 

(d)  Articles  which  might  otherwise  be  necessaries,  when  he  is 

living  under  the  care  of  his  parent  or  guardian,  and  is 
supplied  by  him  with  such  things  as  he  considers  neces- 
sary. 

(e)  What  concerns  his  estate  or  business,  and  not  his  person. 

(f)  Persons  supplying  an  infant  act  at  their  peril,  and  cannot 

recover  if  the  actual  circumstances  were  such  that  the 
things  furnished  were  not  necessaries. 

203.  It  is  the  province  of  the  courts  to  determine  whether  the  par- 

ticular article  furnished  falls  within  the  definition  of  "nec- 
essaries," and  of  the  jury  to  say  whether  they  are  neces- 
saries under  the  circumstances  of  the  particular  case. 

The  most  important  valid  contracts  of  an  infant — that  is,  con- 
tracts which  cannot  be  avoided  by  him — are  his  contracts  for  neces- 


§§  200-203)  CONTRACTS  OF   INFANTS  481 

saries.  The  privilege  of  avoiding  his  contracts,  which  the  law  rec- 
ognizes in  certain  cases,  is  for  the  protection  of  the  infant,  and 
there  is  no  reason  to  relieve  him  from  his  contracts  for  neces- 
saries.17 On  the  contrary,  it  might  be  a  great  hardship  if  he  could 
not  pledge  his  credit  for  necessaries.  Accordingly,  the  cases  are 
uniform  in  holding  infants  bound  to  a  certain  extent  by  such  con- 
tracts.18 An  infant  is  also  liable  for  necessaries  supplied  his  wife,19 
on  the  theory  that  he  is  answerable  for  her  support;  and  he  has 
also  been  held  liable  for  necessaries  supplied  his  child.20  His  liabil- 
ity for  his  child's  necessaries  must  be  based  on  the  parent's  duty  of 
support ;  and  in  England,  and  in  some  states  in  this  country,  where 
it  is  held  that  a  parent  is  under  no  common-law  duty  to  support  his 
children,21  a  parent,  in  the  absence  of  some  contract,  express  or  im- 
plied, is  not  liable  for  their  necessaries.22 

An  infant  is  not  only  liable  on  his  contract  for  necessaries,  but, 
the  contract  being  one  implied  in  law,  he  is  liable  without  any  ex- 
press contract.  Moreover,  his  express  contract,  which  is  other  than 
the  contract  implied  in  law,  will  not  bind  him.23  For  instance,  the 
law  implies  an  agreement  on  his  part  to  pay  what  the  necessaries 
are  reasonably  worth,  and  his  agreement  to  pay  more  is  voidable.24 

17  An  infant  binds  himself  by  a  contract  for  necessaries,  if  equitable  and 
reasonable,  on  the  theory  that  he  may  make  contracts  beneficial  to  himself. 
Smoot  v.  Ryan,  187  Ala.  396,  65  South.  828. 

is  Infant  is  bound  by  his  contract  tor  necessaries  in  view  of  Rev.  Codes,  § 
3593.  Stanhope  v.  Shambow,  54  Mont.  360,  170  Pac.  752. 

19  Turner  v.  Trisby,  1  Strange,  168;    Chappie  v.  Cooper,  13  Mees.  &  W. 
.252;   Cantine  v.  Phillips'  Adm'r,  5  Har.  (Del.)  428;   People  v.  Moores,  4  Denio 

(N.  Y.)  518,  47  Am.  Dec.  272.  Or  family,  Chapman  v.  Hughes,  61  Miss.  339; 
Price  v.  Sanders,  60  Ind.  310;  Land  v.  State,  71  Fla.  270,  71  South.  279,  L. 
R.  A.  1916E,  720. 

20  Van  Valkinburgh  v.  Watson,  13  Johns.  (N.  Y.)  480,  7  Am.  Dec.  395;    Ex 
parte  Ryder,  11  Paige  (N.  Y.)  185,  42  Am.  Dec.  109;    McConnell  v.  McCon- 
nell,  75  N.  H.  385,  74  Atl.  875. 

21  Ante,  p.  321. 

22  "in  point  of  law,  a  father  who  gives  no  authority,  and  enters  into  no 
contract,  is  no  more  liable  for  goods  supplied  to  his  son  than  a  brother  or 
an  uncle  or  a  mere  stranger  would  be."     Lord  Abinger,  C.  B.,  in  Mortiinore 
v.  Wright,  6  Mees.  &  W.  481.     Accord,  Shelton  v.  Springett,  11  C.  B.  452; 
Kelley  v.  Davis,  49  N.  H.  187,  6  Am.  Rep.  499 ;    Gordon  v.  Potter,  17  Vt.  348. 

23  Jones  v.  Valentine's  School  of  Telegraphy,  122  Wis.  318,  99  N.  W.  1043; 
Appeal  of  Ennis,  84  Conn.  610,  80  Atl.  772;    Plummer  v.  Northern  Pac.  R. 
Co.,  98  Wash.  67,  167  Pac.  73. 

2*Barle  v.  Reed,  10  Mete.   (Mass.)  387;    Davis  v.  Gay,  141  Mass.  531,  6 
N.  E.  549 ;   Beeler  v.  Young,  1  Bibb  (Ky.)  519 ;   Parsons  v.  Keys,  43  Tex.  557 ; 
Hyer  v.  Hyatt,  3  Cranch,  C.  C.  276,  Fed.  Cas.  No.  6,977 ;    Sims  v.  Gunter,  201 
TIFF.P.&  D.REL.(3o  ED.)— 31 


482  INFANTS  (Ch.  14 

He  cannot  be  liable  on  an  executory  contract  for  necessaries.25 
So,  too,  he  may  avoid  any  contract  for  necessaries  the  consideration 
of  which  cannot  be  inquired  into.  Some  cases  go  so  far  as  to  hold 
that  negotiable  paper  given  for  necessaries,  even  as  between  the 
original  parties,  is  void,  though  the  consideration  can  be  inquired 
into,  since  it  could  not  be  inquired  into  if  it  should  pass  into  an 
innocent  third  party's  hands  for  value.26  There  are  other  cases 
which  hold  that  a  note  given  for  necessaries  is  merely  voidable  as 
between  the  original  parties,  since  the  consideration  is  open  to  in- 
quiry, and  that  the  value  of  the  articles  can  be  ascertained,  and 
judgment  given  pro  tanto." 

An  infant  is  liable  for  money  expended  in  payment  of  necessaries 
furnished  to  him,  but  not  for  money  supplied  to  him,  to  be  by  him 
expended,  although  it  is  actually  laid  out  for  necessaries.28  "The 
reason  for  this  distinction  is  that  in  the  latter  case  the  contract 
arises  upon  the  lending,  and  that  the  law  will  not  support  contracts 
which  are  to  depend  for  their  validity  upon  a  subsequent  contin- 
gency." 28  This  objection  does  not  arise,  however,  where  the  lend- 

Ala.  286,  78  South.  62 ;  Dubose  v.  Wheddon,  4  McCord  (S.  C.)  221 ;  Locke  v. 
Smith,  41  N.  H.  346.  In  Stone  v.  Dennison,  13  Pick.  (Mass.)  1,  23  Am.  Dec. 
654,  when  an  infant  entered  into  an  agreement  to  labor  until  of  age,  in  con- 
sideration of  being  furnished  with  board,  clothing,  and  education,  it  was 
held  that,  the  agreement  being  fair  and  reasonable  when  entered  into,  the 
infant  could  not  maintain  a  quantum  meruit  for  his  services,  on  their  turn- 
ing out  to  be  worth  more  than  the  agnfpd  compensation. 

25  MAULDIN  v.  SOUTHERN  SHORTHAND  &  BUSINESS  UNIVERSITY, 
3  Ga.  App.  800,  60  S.  E.  358,  Cooley  Cas.  Persons  and  Domestic  Relations,  259 ; 
Jones  v.  Valentine's  School  of  Telegraphy,  122  Wis.  318,  99  N.  W.  1043;   In- 
ternational Text-Book  Co.  v.  McKone,  133  Wis.  200,  113  N.  W.  438. 

26  Williamson  v.  Watts,  1  Camp.  552;    Trueman  v.  Hurst,  1  Term  R.  40; 
In  re  Soltykoff,   [1891]  1  Q.  B.  413;    Swasey  v.  Vanderheyden's  Adm'r,  10 
Johns.  (N.  Y.)  33 ;  Fenton  v.  White,  4  N.  J.  Law,  111 ;   McMinn  v.  Richmonds, 
6  Yerg.  (Tenn.)  9;    Bouchell  v.  Clary,  3  Brev.  (S.  C.)  194;    McCrillis  v.  How, 
:\  N.  H.  348;    Henderson  v.  Fox,  5  Ind.  469;    Morton  v.  Steward,  5  III  App. 
533. 

27  Earle  v.  Reed,  10  Mete.  (Mass.)  387;   Bradley  v.  Pratt,  23  Vt.  378;   Du- 
bose v.  Wheddon,  4  McCord  (S.  C.)  221 ;   Conn  v.  Coburn,  7  N.  H.  368,  26  Am. 
Dec.  746;   Aaron  v.  Harley,  6  Rich.  (S.  C.)  26;    Askey  v.  Williams,  74  Tex. 
294,  11  S.  W.  1101,  5  L.  R.  A.  176;   Guthrie  v.  Morris,  22  Ark.  411. 

2  s  Ellis  v.  Ellis,  5  Mod.  368:  Earle  v.  Peale,  10  Mod.  67;  Clarke  v.  Leslie, 
5  Esp.  28;  KILGORE  v.  RICH,  83  Me.  305,  22  Atl.  176,  12  L.  R.  A.  859,  23  Am. 
St.  Rep.  780,  Cooley  Cas.  Persons  and  Domestic  Relations,  257;  Randall  v. 
Sweet,  1  Denio  (N.  Y.)  460;  Swift  v.  Bennett,  10  Gush.  (Mass.)  438;  Lein 
v.  Centaur  Motor  Co.,  194  111.  App.  509;  Beeler  v.  Young,  1  Bibb  (Ky.)  519; 

29  Swift  v.  Bennett,  10  Cush.  (Mass.)  438.  Accord,  Earle  v.  Peale,  10 
Mod.  67. 


§§200-203)  CONTRACTS  OF  INFANTS  483 

er  applies  the  money  himself,  or  sees  it  applied,  to  the  purchase  of 
necessaries;  and  in  such  case  the  infant  is  bound.30  In  equity, 
however,  the  infant  is  liable  for  money  borrowed  to  pay  for  nec- 
essaries, when  it  is  so  applied,  even  by  the  infant,  because  the  lender 
by  subrogation  stands  in  the  place  of  the  person  paid.31 

Wtyiat  are  Necessaries 

The  principal  items  included  under  infant's  necessaries  are  his 
food,  clothing,  lodging,  medical  attendance,  and  education.32  Ac- 
cordingly, an  infant  has  been  held  liable  for  board  supplied  him,33 
for  food  and  lodging  at  an  hotel; 3*  for  clothing,35  medicine,36  a 
horse,  where  horseback  exercise  was  prescribed  by  a  physician;37 

Genereux  v.  Sibley,  18  B.  I.  43,  25  Atl.  345 ;  Haine's  Adm'r  v.  Tarrant,  2  Hill 
(S.  C.)  400 ;  Conn  v.  Coburn,  7  N.  H.  368,  26  Am.  Dec.  746. 

so  Smith  v.  Oliphant,  2  Sandf.  (N.  Y.)  306;  Randall  v.  Sweet,  1  Denio  (N. 
Y.)  460;  Equitable  Trust  Co.  of  New  York  v.  Moss,  149  App.  Div.  615,  134 
N.  Y.  Supp.  533. 

siMarlow  v.  Pitfield,  1  P.  Wms.  558;  Price  v.  Sanders,  60  Ind.  310;  Hick- 
man  v.  Hall's  Adm'rs,  5  Litt.  (Ky.)  338. 

sz  Co.  Litt  172a ;  Reeve,  Dom.  Rel.  285 ;  Schouler,  Dom.  Rel.  §  411.  See, 
also,  Western  Union  Telegraph  Co.  v.  Greer,  115  Tenn.  368,  89  S.  W.  327,  1 
L.  R.  A.  (N.  S.)  525,  holding  that  a  contract  between  an  infant  and  a  tele- 
graph company  for  the  transmission  of  a  telegram  to  the  infant's  parents 
requesting  money  for  the  infant,  who  was  practically  destitute  and  without 
work,  was  a  contract  for  necessaries.  A  contract  to  perform  services  in  re- 
turn for  food,  clothing,  and  lodging  in  a  contract  for  necessaries  which  the 
infant  could  make.  Starke  v.  Storm's  Ex'r,  115  Va.  651,  79  S.  E.  1057. 

33  Bradley  v.  Pratt,  23  Vt.  378 ;  Barnes  v.  Barnes,  50  Conn.  572 ;  Rivers  v. 
Gregg,  5  Rich.  Eq.  (S.  C.)  274;  Squier  v.  Hydliff,  9  Mich.  274.  But,  when 
undergraduates  were  supplied  by  the  college  with  what  is  generally  necessary, 
dinners  supplied  at  private  rooms  were  held,  prima  facie,  not  necessaries. 
Wharton  v.  Mackenzie,  5  Q.  B.  606;  Brooker  v.  Scott,  11  Mees.  &  W.  67. 

s*  Watson  v.  Cross,  2  Duv.  (Ky.)  147. 

ss  Makarell  v.  Bachelor,  Cro.  Eliz.  583;  Glover  v.  Ott's  Adm'r,  1  McCord 
(S.  C.)  572.  But  not  for  clothing  to  an  unnecessary  amount.  Burghart  v. 
Angerstein,  6  Car.  &  P.  690 ;  Johnson  v.  Lines,  6  Watts  &  S.  (Pa.).  80,  40  Am. 
Dec.  542. 

SB  Glover  v.  Ott's  Adm'r,  1  McCord  (S.  C.)  572;  Werner's  Appeal,  91  Pa.  222: 
Harris  v.  Crowley,  161  Mich.  383,  126  N.  W.  421.  A  physician's  services  are 
necessaries,  for  which  an  infant  is  liable.  Gibbs  v.  Poplar  Bluff  Light  & 
Power  Co.,  142  Mo.  App.  19,  125  S.  W.  840. 

s  T  Hart  v.  Prater,  1  Jur.  623;  Cornelia  v.  Ellis,  11  111.  585.  But  a  buggy 
is  not  necessary  for  an  infant  not  engaged  in  any  business  requiring  the  use 
of  a  buggy,  nor  attending  school,  so  as  to  make  it  necessary  for  him  to  ride 
to  and  from  school.  Heffington  v.  Jackson,  43  Tex.  Civ.  App.  560,  96  S.  W. 
108.  A  note  for  $100,  given  by  a  boy  having  an  estate  of  less  than  $1,000, 
for  a  horse  which  he  used  in  going  to  school  and  in  hauling  wood,  is  invalid ; 
the  horse  not  being  a  necessary.  Rhodes  v.  Frazier's  Estate  (Mo.  App.)  204 
S.  W.  547. 


484  INFANTS  (Ch.  14 

for  dentist's  services;88  and  for  a  common-school  education.39 
Though  it  has  been  said  that  a  college  education  cannot  be  a  nec- 
essary,40 there  would  seem  to  be  no  reason  why  a  college  education 
might  not  be  classed  as  a  necessary,  if  suitable  to  the  infant's  situ- 
ation in  life.  As  was  said  in  an  English  case:  "A  knowledge  of 
the  learned  languages  may  be  necessary  for  one ;  a  mere  knowledge 
of  reading  and  writing  may  be  sufficient  for  another."  41  Yet  a  pro- 
fessional education  has  been  held  not  to  be  a  necessary,42  although 
the  opposite  has  been  held  as  to  instruction  in  a  trade.4* 

An  infant's  necessaries  vary  according  to  the  person.  They  are 
not  restricted  to  what  is  necessary  to  support  life,  but  extend  to  ar- 
ticles fit  to  maintain  the  particular  person,  in  the  state,  situation, 
and  degree  in  life  in  which  he  is.44  In  Hands  v.  Slaney',45  Lord 

s  s  strong  v.  Foote,  42  Conn.  203;  McLean  v.  Jackson,  12  Ga.  App.  51,  76 
S.  E.  792. 

s  s  Co.  Litt.  172;  Middlebury  College  v.  Chandler,  16  Vt.  686,  42  Am.  Dec. 
537 ;  Price  v.  Sanders,  60  Ind.  310 ;  International  Text-Book  Co.  v.  Connelly, 
206  N.  Y.  188,  99  N.  E.  722,  42  L.  R.  A.  (N.  S.)  1115,  affirming  140  App.  Div. 
939,  125  N.  Y.  Supp.  1125;  Pickering  v.  Gunning,  W.  Jones,  182;  Interna- 
tional Text-Book  Co.  v.  Doran,  SO  Conn.  307,  68  Atl.  255  (where  the  question 
whether  instruction  in  arithmetic  and  other  common  branches  was  necessary 
to  a  youth  who  had  finished  two  years  in  high  school  was  held  to  be  one 
of  fact).  Board  while  at  school.  KILGORE  v.  RICH,  83  Me.  305,  22  Atl.  176, 
12  L.  R.  A.  859,  23  Am.  St.  Rep.  780,  Cooley  Cas.  Persons  and  Domestic  Re- 
lations, 257. 

*o  Middlebury  College  v.  Chandler,  16  Vt.  6S9,  42  Am.  Dec.  537.  See,  also, 
Gayle  v.  Hayes'  Adm'r,  79  Va.  542 ;  International  Text- Book  Co.  v.  Connelly, 
206  N.  Y.  188,  99  N.  E.  722,  42  L.  R.  A.  (N.  S.)  1115,  affirming  140  App.  Div. 
939,  125  N.  Y.  Supp.  1125 ;  Smith,  Cont.  269. 

41  Peters  v.  Fleming,  6  Mees.  &  W.  42. 

42  Turner  v.  Gaither,  83  N.  C.  357,  35  Am.  Rep.  574;    Bouchell  v.  Clary,  3 
Brev.  (S.  C.)  194;    Wallin  v.  Highland  Park  Co.,  127  Iowa,  131,  102  N.  W. 
839,  4  Ann.  Cas.  421.    Nor  religious  instruction.     St.  John's  Parish  v.  Bron- 
son,  40  Conn.  75,  16  Am.  Rep.  17.    A  contract  for  a  complete  course  in  steam 
engineering  is  not  a  necessary.    International  Text-Book  Co.  v.  Connelly,  206 
N.  Y.  188,  99  N.  E.  722,  42  L.  R.  A.  (N.  S.)  1115,  affirming  140  App.  Div.  939, 
125  N.  Y.  Supp.  1125. 

"Cooper  v.  Simmons,  7  Hurl.  &  N.  707.  And  see  Mauldin  v.  Southern 
Shorthand  &  Business  University,  126  Ga.  681,  55  S.  E.  922,  8  Ann.  Cas.  130. 

«*  Parke,  B.,  in  Peters  v.  Fleming,  6  Mees.  &  W.  42 ;  Hands  v.  Slaney,  8 
Term  R.  578;  Ryder  v.  Wombwell,  L.  R,  4  Exch.  32;  Coates  v.  Wilson,  5 
Esp.  152 ;  Mauldin  v.  Southern  Shorthand  &  Business  University,  126  Ga.  681. 
55  S.  E.  922,  8  Ann.  Cas.  130 ;  Wallace  v.  Leroy,  57  W.  Va.  263,  50  S.  E,  243, 
110  Am.  St.  Rep.  777 ;  McKanna  v.  Merry,  61  111.  177 ;  Jordan  v.  Coffield,  70 
N.  C.  110;  Nicholson  v.  Spencer,  11  Ga.  607.  The  word  "necessaries"  is  a 
relative  term,  except  when  applied  to  such  things  as  are  obviously  requisite 

45  s  Term  R.  578. 


§§  200-203)  CONTRACTS  OF  INFANTS  485 

Kenyon  said:  "But,  as  to  the  other  article  furnished — namely,  the 
livery — I  cannot  say  that  it  was  not  necessary  for  a  gentleman  in 
the  defendant's  situation  to  have  a  servant;  and,  if  it  was  proper 
for  him  to  have  one,  it  was  equally  necessary  that  the  servant 
should  have  a  livery.  The  general  rule  is  clear  that  infants  are 
liable  for  necessaries,  according  to  their  degree  and  station  in 
life."  In  a  Massachusetts  case  48  it  was  said :  "It  would  be  diffi- 
cult to  lay  down  any  general  rule  upon  this  subject,  and  to  say 
what  would  or  what  would  not  be  necessaries.  It  is  a.  flexible, 
and  not  an  absolute,  term,  having  relation  to  the  infant's  condition 
in  life,  to  the  habits  and  pursuits  of  the  place  in  which,  and  the 
people  among  whom,  he  lives,  and  to  the  changes  in  those  habits 
and  pursuits  occurring  in  the  progress  of  society.  Articles  which 
are  purely  ornamental  are  not  necessaries,  though,  if  useful  as  well 
as  ornamental,  they  may  be,  if  necessary  to  support  the  infant  prop- 
erly in  his  station  in  life."  47  "Articles  of  mere  luxury  are  always 
excluded,  though  luxurious  articles  of  utility  are  in  some  cases  al- 
lowed." 48  Likewise,  those  things  which  contribute  only  to  enjoy- 
ment as  a  journey  taken  for  pleasure,  cannot  be  considered  as  nec- 
essaries.49 

To  come  under  the  head  of  necessaries,  the  articles  supplied  an 
infant  must  be  suitable  to  his  estate  and  degree,  not  only  in  point  of 
quality,  but  also  in  point  of  quantity; 50  and  if  a  minor  is  already 
supplied,  no  matter  from  what  quarter,  any  further  supply  of  goods 


for  the  maintenance  of  existence,  and  depends  on  the  social  position  and 
situation  in  life  of  the  infant,  as  well  as  on  his  own  fortune  and  that  of  his 
parents.  International  Text-Book  Co.  v.  Connelly,  206  N.  Y.  188,  99  N.  E. 
722,  42  I/.  R.  A.  (N.  S.)  1115,  affirming  140  App.  Div.  939,  125  N.  Y.  Supp.  1125. 
Articles  purchased  for  or  by  an  infant  are  not  necessaries  merely  because 
useful  or  beneficial  to  him,  and  a  $100  note  given  by  a  16  year  old  boy,  hav- 
ing an  estate  of  less  than  $1,000,  for  a  horse  which  he  used  in  going  to  school 
and  hauling  wood,  was  invalid ;  the  horse  not  being  a  necessary.  Rhodes  v. 
Frazier's  Estate  (Mo.  App.)  204  S.  W.  547. 

46  Breed  v.  Judd,  1  Gray  (Mass.)  455. 

47  Peters  v.  Fleming,  6  Mees.  &  W.  42. 

48  Chappie  v.  Cooper,  13  Mees.  &  W.  252. 

* » Harrison  v.  Fane,  1  Man.  &  G.  550;  McKanna  v.  Merry,  61  111.  179; 
House  v.  Alexander,  105  Ind.  109,  4  N.  E.  891,  55  Am.  Rep.  189;  Glover  v. 
Ott's  Adm'r,  1  McCord  (S.  C.)  572 ;  Beeler  v.  Young,  1  Bibb  (Ky.)  519 ;  Mil- 
ler v.  Smith,  26  Minn.  248,  2  N.  W.  942,  37  Am.  Rep.  407 ;  Pyne  v.  Wood,  145 
Mass.  558,  14  N.  E.  775 ;  Howard  v.  Simpkins,  70  Ga.  322. 

soBurghart  v.  Angerstein,  6  Car.  &  P.  690;  Johnson  v.  Lines,  6  Watts  & 
S.  80,  40  Am.  Dec.  542 ;  Nicholson  v.  Spencer,  11  Ga.  607. 


486  INFANTS  (Ch.  14 

of  the  same  description  will  not  be  necessaries.51  Where  a  minor 
is  living  with  parent  or  guardian  who  provides  the  real  necessaries 
of  life,  the  minor  cannot  bind  himself  for  what  might  ordinarily  be 
classed  as  his  necessaries,  for  the  parent  or  guardian  has  the  right 
to  decide  in  what  way  the  minor  shall  live; 52  and,  when  a  minor  is 
so  residing,  a  presumption  arises,  rebuttable  by  proof,  that  he  is 
supplied  with  necessaries.58 

Among  necessaries  can  be  included  only  such  things  as  concern 
the  person,  and  not  the  estate.54  As  was  said  in  a  Massachusetts 
case:55 

"The  wants  to  be  supplied  are,  however,  personal — either  those 
for  the  body,  as  food,  clothing,  lodging,  and  the  like;  or  those  nec- 
essary for  the  proper  cultivation  of  the  mind."  Articles  used  by 
him  in  business  are  not  necessaries,  although  essential  thereto. 
"His  buying  to  maintain  his  trade,  although  he  gain  thereby  his  liv- 
ing, shall  not  bind  him."  B6  Building  material  used  in  the  erection 

5i  Burghart  v.  Angerstein,  6  Car.  &  P.  690 ;  Barnes  v.  Toye,  13  Q.  B.  Div. 
410;  Davis  v.  Caldwell,  12  Gush.  (Mass.)  512;  Nicholson  v.  Wilborn,  13  Ga. 
467;  Perrin  v.  Wilson,  10  Mo.  451;  McAllister  v.  Gatlin,  3  Ga.  App.  731,  60 
S.  E.  355 ;  Potter  v.  Thomas  (Sur.)  164  N.  Y.  Supp.  923 ;  Guthrie  v.  Murphy, 
4  Watts  (Pa.)  80,  28  Am.  Dec.  681.  But  see  Ryder  v.  Wombwell,  L.  R.'  3 
Exch.  90.  An  infant  who  has  an  allowance  sufficient  to  supply  himself  with 
necessaries  has  been  held  not  to  be  liable  for  articles  supplied  on  credit. 
Rivers  v.  Gregg,  5  Rich.  Eq.  (S.  tC.)  274.  For  collection  of  cases  on  this  point, 
see  Ewell,  Lead.  Cas.  note,  pp.  63,  64. 

022  Kent,  Comm.  240;  Bainbridge  v.  Pickering,  2  W.  Bl.  1325;  Hoyt  v. 
Casey,  114  Mass.  397,  19  Am.  Rep.  371 ;  Kline  v.  L'Amoureux,  2  Paige  (X.  Y.) 
419,  22  Am.  Dec.  652 ;  Elrod  v.  Myers,  2  Head  (Tenn.)  33 ;  Jones  v.  Colviu,  1 
Mi-Mul.  (S.  C.)  14;  Pearson  v.  White  &  Cochran,  13  Ga.  App.  117,  78  S.  E. 
864;  Perrin  v.  Wilson,  10  Mo.  451;  Wailing  v.  Toll,  9  Johns.  (N.  Y.)  141; 
Guthrie  v.  Murphy,  4  Watts  (Pa.)  80,  28  Am.  Dec.  681;  Kraker  v.  Byruiu, 
13  Rich.  (S.  C.)  163.  An  infant,  who  voluntarily  leaves  the  house  of  her 
father,  who  has  ability  and  willingness  to  support  her,  cannot  make  a  binding 
contract  for  necessaries.  Goodman  v.  Alexander,  28  App.  Dlv.  227,  50  X.  Y. 
Supp.  884. 

53  Hull's  Assignees  v.  Connolly,  3  McCord  (S.  C.)  6,  15  Am.  Dec.  612 ;  Per- 
rin v.  Wilson,  10  Mo.  451;  Mauldin  v.  Southern  Shorthand  &  Business  Uni- 
versity, 126  Ga.  681,  55  S.  E.  922,  8  Ann.  Cas.  130;  McAllister  v.  Gatlin,  3 
Ga.  App.  731,  60  S.  E.  355 ;  Freeman  v.  Bridger,  49  X.  C.  1,  G7  Am.  Dec.  25S. 

64  Burton  v.  Anthony,  46  Or.  47,  79  Pac.  185,  68  L.  R,  A.  826,  114  Am.  St. 
Rep.  847,  holding  that  an  infant  was  not  bound  as  for  necessaries  on  a  loan 
of  money  to  redeem  laud  from  mortgage  sale.  Money  advanced  to  pay  off  a 
prior  mortgage  is  not  a  necessary.  Magee  v.  Welsh,  18  Cal.  155;  Bicknell  v. 
Bicknell,  111  Mass.  265 ;  West  v.  Gregg's  Adm'r,  1  Grant,  Cas.  (Pa.)  53. 

66  Tupper  v.  Cadwell,  12  Mete.  (Mass.)  559,  46  Am.  Dec.  704. 

66  Whittingham  v.  Hill,  Cro.  Jac.  494.  Accord.  Dilk  v.  Keighley,  2  Esp. 
.480;  Wallace  v.  Leroy,  57  W.  Va.  203,  50  S.  E.  243,  110  Am.  St.  Rep.  777; 


§§  200-203)  CONTRACTS  OF  INFANTS  487 

of  a  house  on  the  infant's  land  does  not  come  under  the  head  of 
necessaries,57  and  a  mechanic's  lien  therefor  cannot  be  enforced 
against  the  property.58  -On  the  same  principle,  an  infant  cannot  be 
bound  by  a  contract  for  repairs  to  be  made  on  his  real  estate,  though 
necessary  to  prevent  immediate  injury; 59  nor  for  protection  by  in- 
surance against  fire; 60  nor  for  life  insurance; 61  nor  for  legal  serv- 
ices to  protect  his  property,62  though  he  would  be  liable  for  such 
services  in  defending  him  on  a  criminal  charge.68 

What  are  necessaries  is  a  mixed  question  of  law  and  fact.  It  is 
for  the  court  to  say  whether  the  articles  in  question  can  be  neces- 
saries, and  for  the  jury  to  say  whether  they  are.64  As  was  said  in  a 

Lamkin  &  Foster  v.  Le  Doux,  101  Me.  581.  64  Atl.  104S,  8  L.  R.  A.  (N.  S.)  104 ; 
Mason  v.  Wright,  13  Mete.  (Mass.)  306;  Paul  v.  Smith,  41  Mo.  App.  275; 
House  v.  Alexander,  105  Ind.  109,  4  N.  E.  891,  55  Am.  Rep.  189;  Decell  v. 
Lewenthal,  57  Miss.  331,  34  Am.  Rep.  449;  Wood  v.  Losey,  50  Mich.  475,  15 
N.  W.  557 ;  Crew-Levick  Co.  v.  Hull,  125  Md.  6,  93  Atl.  208 ,  Lein  v.  Centaur 
Motor  Co.  of  Illinois,  194  111.  App.  509.  Where  infant  was  engaged  in  busi- 
ness of  operating  automobile  as  common  carrier,  whatever  was  furnished  to 
him  to  enable  him  to  carry  on  such  business  did  not  come  within  description 
of  "necessaries."  La  Rose  v.  Nichols,  91  N.  J.  Law,  355,  103  Atl.  390.  But 
this  question  is  regulated  by  statute  in  some  states.  See  ante,  p.  478. 

57  Freeman  v.  Bridger,  49  N.  C.  1,  67  Am.  Dec.  258;  Wornack  v.  Loar,  11 
S.  W.  438,  11  Ky.  Law  Rep.  6. 

B s  Jones,  Liens,  §  1239;  Price  v.  Jennings,  62  Ind.  Ill;  Bloomer  v.  Nolan, 
36  Neb.  51,  53  N.  W.  1039,  38  Am.  St.  Rep.  690. 

5»Tupper  v.  Cadwell,  12  Mete.  (Mass.)  559,  46  Am.  Dec.  704;  Wallis  v. 
Bardwell,  126  Mass.  366 ;  PHILLIPS  v.  LLOYD,  18  R.  I.  99,  25  Atl.  909,  Cooley 
Cas.  Persons  and  Domestic  Relations,  261;  West  v.  Gregg's  Adm'r,  1  Grant, 
Gas.  (Pa.)  53.  But  see  James  v.  Sasser,  3  Ga.  App.  568,  60  S.  E.  329. 

eo  New  Hampshire  Mnt.  Fire  Ins.  Co.  v.  Noyes,  32  N.  H.  345. 

ei  Simpson  v.  Prudential  Ins.  Co.  of  America,  184  Mass.  348,  68  N.  E.  673, 
63  L.  R.  A.  741,  100  Am.  St.  Rep.  560,  holding  that  the  fact  that  such  a  con- 
tract was  reasonable  and  prudent  was  immaterial.  See,  also,  Prudential 
Life  Ins.  Co.  of  America  v.  Fuller,  29  Ohio  Cir.  Ct  R.  415.  For  a  full  dis- 
cussion of  the  status  of  contracts  of  insurance  taken  out  by  an  infant,  see 
Cooley,  Briefs  on  the  Law  of  Insurance,  vol.  1,  pp.  72-77. 

ezphelps  v.  Worcester,  11  N.  H.  51;  Watts  v.  Houston  (Okl.)  165  Pac. 
128;  Mclsaac  v.  Adams,  190  Mass.  117,  76  N.  E.  654,  112  Am.  St.  Rep.  321, 
5  Ann.  Cas.  729.  But  see  Epperson  v.  Nugent,  57  Miss.  45,  34  Am.  Rep.  434; 
Slusher  v.  Weller,  151  Ky.  203,  151  S.  W.  684. 

6s  Barker  v.  Hihbard,  54  N.  H.  539,  20  Am.  Rep.  160;  Askey  v.  Williams, 
74  Tex.  294,  11  S.  W.  1101,  5  L.  R.  A.  176.  In  Munson  v.  Washband,  31  Conn. 
303,  83  Am.  Dec.  151,  attorney's  services  in  a  civil  suit  were  held  necessaries. 
To  the  same  effect,  see  Burns  v.  Illionis  Cent.  R.  Co.,  190  111.  App.  191; 
Hickman  &.  Wells  v.  McDonald,  164  Iowa,  50,  145  N.  W.  322;  Sutton  v. 
Heinzle,  84  Kan.  756,  115  Pac.  560,  34  L.  R.  A.  (N.  S.)  238,  rehearing  de- 
nied 85  Kan.  332,  116  Pac.  614,  34  L.  R.  A.  (N.  S.)  239;  Slusher  v.  Weller, 
151  Ky.  203,  151  S.  W.  684. 

64.Anson,  Cont.  Ill,  112;    Clark,  Cont.  237;    Merriam  v.  Cunningham,  11 


488  INFANTS  (Ch.  14 

Massachusetts  case :  "It  is  the  well-settled  rule  that  it  is  the  prov- 
ince of  the  court  to  determine  whether  the  articles  sued  for  are 
within  the  class  of  necessaries,  and,  if  so,  it  is  the  proper  duty  of  the 
jury  to  pass  upon  the  question  of  the  quantity,  quality,  and  their 
adaption  to  the  condition  and  wants  of  the  infant."  65 

SAME— RATIFICATION  AND  DISAFFIRMANCE 

204.  A  promise  to  perform  an  isolated  act,  or  a  contract  that  is 
wholly  executory,  is  of  no  effect  until  it  has  been  ratified; 
but  an  executed  contract,  or  a  contract  that  involves  con- 
tinuous rights  and  obligations,  is  valid  until  it  has  been 
disaffirmed. 

Of  course,  the  contract  of  an  infant,  if  absolutely  void,  is  not  sub- 
ject to  ratification,66  and  need  not  be  disaffirmed.67  Some  voidable 
contracts  of  an  infant  bind  him  unless  he  disaffirms  them,  while 
others  do  not  bind  him  unless  he  ratifies  them.  A  promise  to  per- 
form some  isolated  act,  or  a  contract  that  is  wholly  executory,  has 
no  effect  until  it  is  ratified.68  On  the  other  hand,  voidable  con- 
tracts which  are  wholly  or  partially  executed,  and  contracts  involv- 
ing continuing  rights  and  obligations,  need  no  ratification,  but  are 
binding  until  they  are  disaffirmed.69  In  other  words,  it  may  be  laid 
down  as  a  general  rule  that  when  an  interest  in  property  of  a  fixed 
and  permanent  nature  is  vested  either  in  the  infant,  or  in  the  other 
party  to  the  contract,  under  an  executed  contract,  as  by  a  convey- 
ance of  real  estate  or  transfer  of  personal  property,  or  when  trie 
infant  enters  into  a  continuing  contractual  relation,  as  where  he  be- 
comes a  partner  or  a  stockholder,  there  must  be  some  distinct  act 
of  disaffirmance  on  the  part  of  the  infant  to  avoid  the  contract. 
Thus,  conveyances  of  land  to  an  infant  are  valid  until  disaffirm- 
ed,70 and  an  infant  lessee  of  land  becomes  liable,  until  disaffirmance, 

Cush.  (Mass.)  40;  McKanna  v.  Merry,  61  111.  177 ;  Jordan  v.  Coffield,  70  N.  C. 
110 ;  1  Pars.  Cont.  296,  and  cases  in  note  v. 

as  Merriain  v.  Cunningham,  11  Cush.  (Mass.)  40. 

ee  Hakes  Inv.  Co.  v.  Lyons,  166  Cal.  557,  137  Pac.  Oil. 

«T  Chambers  v.  Chattanooga  Union  Ry.  Co.,  130  Tenn.  459,  171  S.  W.  84. 

esQ'Donohue  v.  Smith,  130  App.  Div.  214,  114  N.  Y.  Supp.  536,  affirming 
57  Misc.  Rep.  448,  109  N.  Y.  Supp.  929. 

«»  Clemmer  v.  Price,  59  Tex.  Civ.  App.  84,  125  S.  W.  604. 

TO  Rohwer  v.  District  Court  of  First  Judicial  District,  41  Utah,  279,  129 
Pac.  671.  An  infant  is  capable  of  being  donee  of  property,  and  in  case  of 


§  204  CONTRACTS  OF  INFANTS  489 

for  all  obligations  attached  to  the  estate,  as  to  pay  rent  under  a 
lease  rendering  rent,71  and,  when  he  continues  in  possession  after 
becoming  of  age,  he  is  chargeable  with  the  arrears  which  have 
accrued  during  his  minority.72  An  important  class  of  contracts 
which  are  binding  upon  an  infant  until  he  disaffirms  them  are  his 
sales  and  conveyances  of  real  estate.  His  conveyances  pass  a  good 
title  to  the  purchaser,  subject  only  to  be  divested  by  his  disaffirm- 
ance.73  And  the  vendee  may  convey  his  title  to  some  one  else,  sulc)- 
ject  to  the  infant's  right  of  disaffirmance.74 

When  an  infant  enters  into  a  partnership,  he  contracts  a  continu- 
ing obligation,  and  must  disaffirm  the  relation  on  reaching  his  ma- 
jority, or  he  will  remain  a  partner,  and  be  liable  as  such.  His  mere 
failure  to  disaffirm  will  render  him  liable  for  the  debts  of  the  firm 
contracted  subsequent  to  his  becoming  of  age,  without  proof  of  any 
act  on  his  part  as  a  partner  after  his  majority.75  But,  to  render 
him  liable  for  debts  of  the  firm  contracted  during  his  minority,  there 
must  be  a  ratification  of  them,  express  or  implied.76  His  mere 
failure  to  disaffirm  on  reaching  his  majority,  without  proof  of  sub- 
sequent acts  as  a  partner,  will  not  constitute  a  ratification,  but  fail- 
ure to  disaffirm,  followed  by  acts  as  a  partner,  may.  We  will  con- 


gift  to  infant  no  formal  acceptance  Is  necessary,  but,  if  gift  is  for  his  ad- 
vantage, the  law  accepts  it  for  him,  and  will  hold  the  donor  bound;  while, 
if  gift  is  not  for  infant's  advantage,  the  law  will  repudiate  it,  at  his  instance, 
even  though  he  in  terms  has  accepted  it.  Youngblood  v.  Hoeffle  (Tex.  Civ. 
App.)  201  S.  W.  1057.  And  see  Petre  v.  Petre  (Ind.  App.)  121  N.  E.  285. 

fiBottiller  v.  Newport,  21  Hen.  VI.  p.  31;  Northwestern  Ry.  Go.  v.  Mc- 
Michael,  5  Exch.  114,  123;  Ketsey's  Case,  Cro.  Jac.  320.  But  see,  contra, 
Flexner  v.  Dickerson,  72  Ala.  318. 

"  Bac.  Abr.  "Infancy  and  Age,"  (1)  8;  Rolle,  Abr.  731. 

73  Irvine  v.  Irvine,  9  Wall.  617,  19  L.  Ed.  800;  HAYNES  v.  BENNETT,  53 
Mich.  15,  18  N.  W.  539,  Cooley  Cas.  Persons  and  Domestic  Relations,  276; 
Parrish  v.  Treadway,  267  Mo.  91,  183  S.  W.  580;  McReynolds  v.  Stoats,  288 
111.  22,  122  N.  E.  860 ;  Tunison  v.  Chamblin,  88  111.  378 ;  Dixon  v.  Merritt,  21 
Minn.  196 ;  Scranton  v.  Stewart,  52  Ind.  68 ;  Green  v.  Green,  69  N.  Y.  553,  25 
Am.  Rep.  233,  and  cases  cited  in  notes  75-78,  pp.  515,  516,  post.  For  one  to 
maintain  ejectment  for  land  deeded  by  him  while  an  infant,  he  must  disaffirm 
the  deed  before,  and  otherwise  than  by  bringing  the  action.  Tomczek  v.  Wieser, 
58  Misc.  Rep.  46,  108  N.  Y.  Supp.  784. 

T*  Mustard  v.  Wohlford's  Heirs,  15  Grat.  (Va.)  329,  340,  76  Am.  Dec.  209; 
Searcy  v.  Hunter,  81  Tex.  644,  17  S.  W.  372,  26  Am.  St.  Rep.  837;  Miles  y. 
Lingerman,  24  Ind.  385 ;  Palmer  v.  Miller,  25  Barb.  (N.  Y.)  399. 

75  Goode  v.  Harrison,  5  Barn.  &  Aid.  147. 

76  Tobey  v.  Wood,  123  Mass.  88,  25  Am.  Rep.  27;   Todd  v.  Clapp,  118  Mass. 
495;    Bush  v.  Linthicum,  5©  Md.  344. 


490  INFANTS  (Ch.  14 

sider  this  further  when  we  come  to  ascertain  what  constitutes  a 
ratification.77 

A  further  illustration  of  an  infant's  contract  which  requires  some 
act  of  disaffirmance  to  avoid  it  is  the  position  of  an  infant  who  has 
become  a  stockholder  in  a  corporation.  "In  the  cases  already  de- 
cided upqn  this  subject,  infants  having  become  shareholders  in 
railway  companies  have  been  held  liable  to  pay  calls  made  whilst 
they  were  infants.  They  have  been  treated,  therefore,  as  persons 
in  a  different  situation  from  mere  contractors,  for  then  they  would 
have  been  exempt;  b.ut,  in  truth,  they  are  persons  who  have  ac- 
quired an  interest  not  in  a  mere  chattel,  but  in  a  subject  of  a  per- 
manent nature,  *  *  *  and  with  certain  obligations  attached  to 
it  which  they  are  bound  to  discharge,  *  *  *  unless  they  have 
elected  to  waive  or  disagree  to  the  purchase  altogether."  78  When 
an  'nfant  has  become  a  stockholder,  he  may  repudiate  the  contract 
before  or  after  majority; 79  but  he  must  disaffirm  within  a  reasonable, 
time  after  his  majority,  or  he  will  be  held  to  have  ratified  the  con- 
tract,80 and  will  be  liable  for  calls.81 

There  is  a  difference  of  opinion  whether  an  infant  may  disaffirm 
his  contract  when  he  has  induced  the  other  party  to  contract  with 
him  by  false  representations  that  he  is  of  age.  The  general  rule 
seems  to  be  that  he  is  not,  by  reason  of  such  false  representations, 
estopped  from  pleading  his  infancy,  if  sued  on  the  contract,82  nor 

\ 

"Post,  p.  497. 

™  Parke,  B.,  In  London  &  N.  W.  Ry.  Co.  v.  McMichael,  20  Law  J.  Exch. 
97,  5  Exch.  114. 

™  London  &  N.  W.  Ry.  Co.  v.  McMichael,  20  Law  J.  Exch.  97 ;  Ehhetts'  Case, 
5  Ch.  App.  302;  Lumsden's  Case,  4  Ch.  App.  31;  WULLER  v.  CHUSE  GRO- 
CERY CO.,  147  111.  App.  224,  affirmed  241  111.  398,  89  N.  E.  796,  28  L.  R.  A.  (N. 
S.)  128,  132  Am.  St  Rep.  216,  16  Ann.  Cas.  522,  Cooley  Cas.  Persons  and  Do- 
mestic Relations,  262;  Seeley  v.  Seeley-Howe-Le  Van  Co.,  128  Iowa,  294.  103 
N.  W.  961.  See  Cook,  Stock  &  S.  §§  66,  230,  318,  for  collection  of  cases  on 
infant  stockholders. 

so  Lumsden's  Case,  4  Ch.  App.  31;  Cork  &  B.  Ry.  Co.  v.  Cazenove,  10  Q.  B. 
935 ;  Ehhetts'  Case,  5  Ch.  App.  302 ;  Mitchell's  Case,  L.  R.  9  Eq.  363. 

si  Dublin  &  W.  Ry.  Co.  v.  Black,  8  Exch.  181. 

szBurley  v.  Russell,  10  X.  H.  184,  34  Am.  Dec.  146;  Brown  v.  McCune,  5 
Sandf.  (N.  Y.)  224;  Studwell  v.  Shapter,  54  X.  Y.  249:  Merriam  v.  Cunning- 
ham, 11  Cush.  (Mass.)  40 ;  Conrad  v.  Lane,  26  Minn.  389,  ^N.  W.  695,  37  Am. 
Rep.  412;  McKamy  v.  Cooper,  81  Ga.  679,  8  S.  E.  312;  New  York  Building 
Loan  Banking  Co.  v.  Fisher,  23  App.  Div.  363,  48  X.  Y.  Supp.  152;  Beau- 
champ  v.  Bertig,  90  Ark.  351,  119  S.  W.  75,  23  L.  R.  A.  (N.  S.)  659;  Inter- 
national Text-Book  Co.  v.  Doran,  80  Conn.  307,  68  Atl.  295;  Miller  v.  St. 
Louis  &  S.  F.  R.  Co.,  188  Mo.  App.  402,  174  S.  W.  166;  International  Text- 


§§  205-207)  CONTRACTS  OF  INFANTS  491 

is  he  estopped  from  avoiding  the  contract,  and  seeking  affirmative 
relief,  as  the  recovery  of  property  which  he  has  parted  with.83 
But. there  are  cases  to  the  contrary.8* 


SAME— TIME  OF  AVOIDANCE 

205.  Executory  contracts  or  executed  contracts  relating  to  person^ 

alty  may  be  avoided  by  an  infant  either  before  or  after  at- 
taining his  majority;  but  conveyances  of  real  estate  can- 
not be  avoided  during  minority,  though  he  may  enter  and 
take  the  profits. 

206.  As  a  rule,  mere  lapse  of  time  after  attaining  his  majority  will 

not  bar  an  infant's  disaffirmance  of  his  executory  contract, 
but  in  a  few  states  he  is  required  to  disaffirm  within  a  rea- 
sonable time. 

207.  As  a  rule,  executed  contracts  must  be  disaffirmed  within  a 

a  reasonable  time  after  attaining  majority;  but  in  some 
states  it  is  held  that  the  right  to  avoid  a  conveyance  of  real 
estate  is  not  barred  by  acquiescence  for  any  period  short 
of  that  prescribed  by  the  statute  of  limitations. 

In  this  section  we  are  to  consider  the  time  within  which  an  in- 
fant may  avoid  his  contracts,  and  the  time  within  which  he  must 
avoid  them.  An  infant's  executory  contract  may  be  avoided  by 
him  at  any  time,  either  before  or  after  attaining  his  majority,  by 
refusing  to  perform  it,  and  pleading  his  infancy  when  sued  for  a 

Book  Co.  v.  Connelly,  206  N.  Y.  188,  99  N.  E.  722,  42  L.  R.  A.  (N.  S.)  1115,  af- 
firming 140  App.  Div.  939,  125  N.  Y.  Supp.  1125.  And  see  Sims  v.  Everhardt, 
102  U.  S.  300,  26  L.  Ed.  87. 

S3Whitcomb  v.  Joslyn,  51  Vt.  79,  31  Am.  Rep.  678;  Raymond  v.  Gen- 
eral Motorcycle  Sales  Co.,  230  Mass.  54,  119  N.  E.  359;  Norris  v.  Vance,  3 
Rich.  (S.  C.)  164.  His  false  representation  that  he  is  of  age  will  not  pre- 
vent him  from  avoiding  his  contract  of  service,  and  from  recovering  on 
a  quantum  meruit.  Burdett  v.  Williams  (D.  C.)  30  Fed.  697.  Nor  will  a  re- 
cital in  a  deed  that  he  is  of  age  estop  him  from  disaffirming  the  deed.  Wie- 
land  v.  Kobick,  110  111.  16,  51  Am.  Rep.  676.  But  see  Bradshaw  v.  Van 
Winkle,  133  Ind.  134,  32  N.  E.  877.  He  may  be  estopped  to  disaffirm  under 
such  circumstances  where  he  stands  by,  after  majority,  knowing  that  the  land 
is  being  conveyed  to  subsequent  purchasers.  Lacy  v.  Pixler,  120  Mo.  383, 
25  S.  W.  206. 

84  Turner  v.  Stewart,  149  Ky.  15,  147  S.  W.  772;  Pace  v.  Cawood  (Ky.)  110 
S.  W.  414;  First  Nat.  Bank  v.  Casey,  158  Iowa,  349,  138  N.  W.  897;  Lake 
v.  Perry,  95  Miss.  550,  49  South.  569 ;  La  Rosa  v.  Nichols,  92  N.  J.  Law,  375, 


492  INFANTS  (Ch.  14 

breach  of  it."  In  the  case  of  executed  contracts,  a  distinction  is 
made  between  contracts  relating  to  his  real  estate  and  contracts 
relating  to  his  personalty.  A  conveyance  of  his  land  by  an  infant 
cannot  be  disaffirmed  during  his  minority.86  He  may  enter  on 
the  land,  and  take  the  profits  until  the  time  arrives  when  he  has  the 
legal  capacity  to  affirm  or  disaffirm,  the  conveyance.  But  the  con- 
veyance is  not  rendered  void  by  the  entry.  It  may  still  be  affirmed 
after  he  reaches  his  majority.87 

This  rule  does  not  apply  to  a  sale  and  manual  delivery  of  chattels 
by  an  infant.  Such  a  contract  may  be  avoided  by  him  while  he  is 
still  an  infant.  In  Stafford  v.  Roof,88  a  leading  New  York  case,  it 
was  said:  "The  general  rule  is  that  an  infant  cannot  avoid  his 
contract,  executed  by  himself,  and  which  is  therefore  voidable  only, 
while  he  is  within  age.  He  lacks  legal  discretion  to  do  the  act  of 

105  Atl.  201,  6  A.  L.  R.  412,  reversing  91  N.  J.  Law,  355,  103  Atl.  390;  Put- 
nal  v.  Walker,  61  Fla.  720,  55  South.  844,  36  L.  R,  A.  (N.  S.)  33  (if  representa- 
tions are  fraudulent)  ;  GRAUMAN,  MARX  &  CLINE  CO.  v.  KRIENITZ,  142 
Wis.  556,  126  N.  W.  50,  Cooley  Gas.  Persons  and  Domestic  Relations,  251  (if 
contract  is  beneficial  to  him,  but  not  otherwise).  But,  if  grantee  of  deed  knew 
grantor  was  an  infant,  the  latter  was  not  estopped  by  his  false  representa- 
tions. Asher  v.  Bennett,  143  Ky.  361,  136  S.  W.  879. 

SB  Reeve,  Dom.  Rel.  254;  Rice  v.  Boyer,  108  Ind.  472,  9  N.  E.  420,  58  Am. 
Rep.  53 ;  Adams  v.  Beall,  67  Md.  53,  8  Atl.  664,  1  Am.  St.  Rep.  379 ;  Covault 
v.  Nevltt,  157  Wis.  113,  146  N.  W.  1115,  51  L.  R.  A.  (N.  S.)  1092,  Ann.  Gas. 
1916A,  959;  Vent  v.  Osgood,  19  Pick.  (Mass.)  572;  Ray  v.  Haines,  52  111.  485; 
Whitmarsh  v.  Hall,  3  Denio  (N.  Y.)  375;  Aborn  v.  Janis,  62  Misc.  Rep.  95, 
113  N.  T.  Supp.  309,  affirmed  121  App.  Div.  923,  106  N.  Y.  Supp.  1115 ;  WUL- 
LER  v.  CHUSE  GROGERY  CO.,  241  111.  398,  89  N.  E.  796,  28  L.  R.  A.  (N.  S.) 
128,  132  Am.  St.  Rep.  216,  16  Ann.  Cas.  522,  Cooley  Gas.  Persons  and  Domestic 
Relations,  262,  affirming  147  111.  App.  224;  Gage  v.  Menczer  (Tex.  Ciy.  App.) 
144  S.  W.  717;  Petty  v.  Roberts,  7  Bush  (Ky.)  410. 

8«  Shreeves  v.  Caldwell,  135  Mich.  323,  97  N.  W.  764,  106  Am.  St.  Rep.  396; 
White  v.  Sikes,  129  Ga.  508,  59  S.'E.  228,  121  Am.  St.  Rep.  228;  O'Donohue 
v.  Smith,  130  App.  Div.  214,  114  N.  Y.  Supp.  536,  affirming  57  Misc.  Rep.  448, 
109  N.  Y.  Supp.  929 ;  Syck  v.  Hellier,  140  Ky.  388,  131  S.  W.  30 ;  DAMRON  v. 
RATLIFF,  123  Ky.  758,  97  S.  W.  401,  Cooley  Cas.  Persons  and  Domestic  Rela- 
tions, 274 ;  Watson  v.  Ruderman,  79  Conn.  687,  66  Atl.  515,  holding,  further, 
that  a  mortgagee  cannot  invoke  equity  to  compel  an  infant  to  exercise  his 
right  to  affirm  or  disaffirm ;  Slater  v.  Rudderforth,  25  App.  D.  C.  497,  holding 
that  the  institution  of  a  suit  for  cancellation  of  the  conveyance  is  a  sufficient 
disaffirmance.  Disaffirmance  must  be  before  and  otherwise  than  by  bring- 
ing suit.  Tomczek  V.  Wieser,  58  Misc.  Rep.  46,  108  N.  Y.  Supp.  784. 

87  Welch  v.  Bunce,  83  Ind.  382;  Zouch  v.  Parsons,  3  Burrows,  1794;  Irvine 
T,  Irvine,  5  Minn.  61  (Gil.  44) ;  Bool  v.  Mix,  17  Wend.  (N.  Y.)  119,  31  Am. 
Dec.  285;  Hastings  v.  Dollarhide,  24  Cal.  195;  Baker  v.  Kennett,  54  Mo.  88; 
Stafford  v.  Roof,  9  Cow.  (N.  Y.)  626 ;  McCormic  v.  Leggett,  53  N.  C.  425. 

•s  9  Cow.  626. 


§§  205-207)  CONTRACTS  OF  INFANTS  493 

avoidance.  But  this  rule  must  be  taken  with  the  distinction  that 
the  delay  shall  not  work  unavoidable  prejudice  to  the  infant,  or  the 
object  of  his  privilege,  which  is  intended  for  his  protection,  would 
not  be  answered.  When  applied  to  a  sale  of  his  property,  it  must 
be  his  land — a  case  in  which  he  may  enter  and  receive  the  profits 
until  the  power  of  finally  avoiding  shall  arrive.  *  *  *  Should 
the  law  extend  the  same  doctrine  to  sales  of  his  personal  estate,  it 
would  evidently  expose  him  to  great  loss  in  many  cases;  and  we 
shall  act  up  to  the  principle  of  protection  much  more  effectually  by 
allowing  him  to  rescind  while  under  age,  though  he  may  sometimes 
misjudge,  and  avoid  a  contract  which  is  for  his  own  benefit.  The 
true  rule,  then,  appears  to  me  to  be  that,  where  the  infant  can  en- 
ter and  hold  the  subject  of  the  sale  till  his  legal  age,  he  shall  be  in- 
capable of  avoiding  till  that  time;  but  where  the  possession  is 
changed,  and  there  is  no  legal  means  to  regain  and  hold  it  in  the 
meantime,  the  infant,  or  his  guardian  for  him,  has  the  right  to  ex- 
ercise the  power  of  rescission  immediately."  89  The  rule  is  very 
general,  almost  universal,  that  an  infant  may  avoid  any  contract  in 
relation  to  his  personal  property  before  he  is  of  age.90  Some  courts 
have  held  that  he  cannot  avoid  a  partnership  agreement,  and  re- 
cover what  he  has  put  into  the  firm,  until  he  attains  his  majority.91 
Other  courts  hold  the  contrary,  on  the  ground  that  it  is  a  contract 
in  relation  to  his  personalty,  and  that  all  contracts  of  an  infant  in 
relation  to  his  personal  property  may  be  disaffirmed  during  his 
minority.92 

8»  Reeve,  Dom.  Eel.  254;  Schouler,  Dom.  Rel.  409;  Stafford  v.  Roof,  9 
Cow.  (N.  Y.)  626;  Price  v.  Furman,  27  Vt.  268,  65  Am.  Dec.  194;  Hoyt  v. 
Wilkinson,  57  Vt.  404;  Riley  v.  Mallory,  33  Conn.  201;  Carr  v.  Clough,  26 
N.  H.  280,  59  Am.  Dec.  345 ;  Towle  v.  Dresser,  73  Me.  252 ;  Willis  v.  Twambly, 
13  Mass.  204 ;  Cogley  v.  Cushman,  16  Minn.  397  (Gil.  354) ;  Carpenter  v.  Car- 
penter, 45  Ind.  142.  But  see  Armitage  v.  Widoe,  36  Mich.  124.  And  see  the 
cases  cited  in  Clark,  Cont.  245. 

80  See  Shirk  v.  Shultz,  113  Ind.  571,  15  N.  E.  12 ;  Rice  v.  Boyer,  108  Ind. 
472,  9  N.  E.  420,  58  Am.  Rep.  53 ;  Shipley  v.  Smith,  162  Ind.  526,  70  N.  E.  803 
(disaffirmance  of  a  lease,  a  leasehold  being  regarded  as  personalty  in  Indi- 
ana) ;  Price  v.  Furman,  27  Vt.  268,  65  Am.  Dec.  194 ;  Hoyt  v.  Wilkinson,  57 
Vt.  404;  Willis  v.  Twambly,  13  Mass.  204;  Stafford  v.  Roof,  9  Cow.  (N.  Y.) 
628 ;  Bool  v.  Mix,  17  Wend.  (N.  Y.)  119,  31  Am.  Dec.  285 ;  In  re  Huntenberg 
(D.  C.)  158  Fed.  768;  Pattern  v.  Kasper,  182  Mich.  281,  148  N.  W.  690,  L. 
R.  A.  1915A,  1221;  Cogley  v.  Cushman,  16  Minn.  397  (Gil.  354). 

siDunton  v.  Brown,  31  Mich.  182;  Armitage  v.  Widoe,  36  Mich.  130; 
Bush  v.  Linthicum,  59  Md.  344.  But  see  Adams  v.  Beall,  67  Md.  53,  8  Atl. 
664,  1  Am.  St.  Rep.  379. 

» 2  Shirk  v.  Shultz,  113  Ind.  571,  15  N.  E.  12;  Adams  v.  Beall,  67  Md.  53, 
8  Atl.  664,  1  Am.  St.  Rep.  379. 


494  INFANTS  (Ch.  14 

As  to  whether  a  contract  must  be  disaffirmed  by  an  infant  within 
a  reasonable  time  after  he  attains  his  majority,  the  authorities  are 
conflicting.  In  the  case  of  executory  contracts  requiring  ratification 
to  render  them  binding,  the  right  to  avoid  them  cannot  be  barred 
by  mere  silence,  without  more.  But  it  may  be  otherwise  where  the 
circumstances  are  such  as  to  make  it  the  infant's  duty  to  speak,  for 
in  such  a  case  silence  or  acquiescence  may  amount  to  a  ratifica- 
tion.93 In  the  case  of  those  contracts  which  require  disaffirmance 
after  the  infant  becomes  of  age,9*  such  as  conveyances  of  land, 
sales  and  delivery  of  chattels,  and  the  like,  the  infant  must,  accord- 
ing to  the  weight  of  authority,  disaffirm  the  contract  within  a  rea- 
sonable time  after  he  attains  his  majority,  or  it  cannot  be  avoided  at 
all.95  Many  courts,  however,  hold  that  a  conveyance  of  land  by  an 

»3  Post,  p.  497.  "Ante,  p.  491. 

95  Delano  v.  Blake,  11  Wend.  (N.  Y.)  85,  25  Am.  Dec.  617;  GOODNOW  v. 
EMPIRE  LUMBER  CO.,  31  Minn.  468,  18  N.  W.  283,  47  Am.  Rep.  798,  Cooley 
Cas.  Persons  and  Domestic  Relations,  267  (collecting  the  cases)  ;  Robinson  v. 
Allison,  192  Mo.  366,  91  S.  W.  115;  In  re  Huntenberg  (D.  C.)  153  Fed.  768; 
Lawder  v.  Larkin  (Tex.  Civ.  App.)  94  S.  W.  171;  Bigelow  v.  Kinney,  3  Vt. 
353,  21  Am.  Dec.  589 ;  Kline  v.  Beebe,  6  Conn.  494 ;  Wallace's  Lessee  v.  Lewis, 
4  Har.  (Del.)  75 ;  Hastings  v.  Dollarhide,  24  Cal.  195 ;  Scott  v.  Buchanan,  11 
Humph.  (Tenn.)  468:  Harris  v.  Cannon,  6  Ga.  382;  Langdon  v.  Clayson,  75 
Mich.  204,  42  N.  W.  805;  Chambers  v.  Chattanooga  Union  R.  Co.,  130  Tenn. 
459,  171  S.  W.  84;  Criswell  v.  Criswell,  101  Neb.  349,  163  N.  W.  302,  L. 
R.  A.  1917E,  1103;  Brown  v.  Staab.  103  Kan.  611,  176  Pac.  113;  Clyde  v. 
Steger  &  Sons  Piano  Mfg.  Co.,  22  Ga.  App.  192,  95  S.  E.  734;  Krbel  v.  Krbel, 
84  Neb.  160,  120  N.  W.  935 ;  Darlington  v.  Hamilton  Bank,  63  Misc.  Rep.  289, 
116  N.  Y.  Supp.  678;  Stone  v.  Wolfe,  50  Tex.  Civ.  App.  231,  109  S.  W.  981 ; 
Pedro  v.  Pedro,  71  Misc.  Rep.  296,  127  N.  Y.  Supp.  997;  Baggett  v.  Jackson, 
160  N.  C.  26,  76  S.  E.  86  (must  disaffirm  within  3  years) ;  Clemmer  v.  Price, 
59  Tex.  Civ.  App.  84,  125  S.  W.  604.  Disaffirmance  -must  be  within  one  year 
in  some  states.  Helland  v.  Colton  State  Bank,  20  S.  D.  325,  106  N.  W.  60; 
Luce  v.  Jestrab,  12  N.  D.  548,  97  N.  W.  848.  In  DAMRON  v.  RATLIFF,  123  Ky. 
758,  97  S.  W.  401,  Cooley  Cas.  Persons  and  Domestic  Relations,  274,  it  wa» 
held  that  an  infant  may  ratify  a  conveyance  of  real  estate  by  failure  to 
disaffirm.  But  see  Gaskins  v.  Allen,  137  N.  C.  426,  49  S.  E.  919,  holding  that 
a  deed  executed  by  a  married  woman  while  a  minor  was  not  ratified  by  lapse 
of  time  with  no  disaffirmance  for  more  than  20  years.  There  is  no  definite 
fixed  time  within  which  a  minor  must  disaffirm  after  majority.  Hobbs  v. 
Hinton  Foundry,  Machine  &  Plumbing  Co.,  74  W.  Va.  443,  82  S.  E.  267,  Ann. 
Cns.  15)1 7D,  410.  What  constitutes  a  reasonable  time  is  a  question  of  fact. 
Salser  v.  Barren  (Tex.  Civ.  App.)  146  S.  W.  1039.  It  depends  on  the  circum- 
stances of  the  case.-  Darlington  v.  Hamilton  Bank,  63  Misc.  Rep.  289,  116 
N.  Y.  Supp.  678.  For  examples  of  reasonable  and  unreasonable  delay,  see 
the  following  cases:  Stone  v.  Wolfe,  50  Tex.  Civ.  App.  231,  109  S.  W.  981 
('2  yrnrs  reasonable) ;  Hobbs  v.  Hinton  Foundry,  Machine  &  Plumbing  Co., 
74  W.  Va.  443,  82  S.  E.  267,  Ann.  Cas.  1917D,  410  (3  months'  delay  not  un- 


I 
§§  208-209)  CONTRACTS  OF  INFANTS  495 

infant  need  not  be  disaffirmed  within  any  period  short  of  that 
prescribed  by  the  statute  of  limitations,  and  that  acquiescence  for 
any  shorter  time  will  not  bar  his  right  to  avoid  it.90  In  some  states 
it  is  provided  by  statute  that  an  infant  is  bound  by  all  his  contracts 
unless  he  disaffirms  them  within  a  reasonable  time.97 

SAME— WHO  MAY  AVOID  CONTRACT 

208.  The  privilege  of  infancy  is  personal  to  the  infant,  and  he  alone 

can  take  advantage  of  it  during  his  life  and  sanity.  On 
his  death,  or  if  he  becomes  insane,  his  right  of  avoidance 
passes  to  his  heirs,  personal  representatives,  or  conserva- 
tor, or  guardian. 

209.  The  other  party  to  the  contract,  not  being  himself  under  dis- 

ability, is  bound  if  the  infant  chooses  to  hold  him. 

The  right  to  avoid  a  contract  on  the  ground  of  infancy  is  a  right 
given  to  the  infant  for  his  protection.  It  is  a  personal  privilege, 
and  during  his  life  and  sanity  the  infant  alone  can  take  advantage 

reasonable) ;  Hogan  v.  Utter,  175  N.  C.  332,  95  S.  E.  565  (within  3  years  rea- 
sonable) ;  Gannon  v.  Manning,  42  App.  D.  C.  206  (IS  days  after  attaining 
majority  reasonable) ;  Daimwood  v.  Driscoll  (Tex.  Civ.  App.)  151  S.  W.  621 
(3  years  unreasonable)  ;  Kline  v.  Galland,  53  Wash.  504,  102  Pac.  440  (1 
year,  lacking  3  days,  unreasonable  delay). 

»8  Drake's  Lessee  v.  Ramsay,  5  Ohio,  251 ;  Weeks  v.  Wilkins,  134  N.  C. 
516,  47  S.  E.  24;  Prout  v.  Wiley,  28  Mich.  164;  Sims  v.  Everhardt,  102  U.  S. 
300,  26  L.  Ed.  87 ;  Irvine  v.  Irvine,  9  Wall.  H17,  19  L.  Ed.  800 ;  Lacy  v.  Pix- 
ler,  120  Mo.  383,  25  S.  W.  206 ;  Boody  v.  McKenney,  23  Me.  517 ;  Richardson 
v.  Pate,  93  Ind.  423,  47  Am.  Rep.  374 ;  Wells  v.  Seixas  (C.  C.)  24  Fed.  82,  and 
note  collecting  cases ;  Putnal  v.  Walker,  61  Fla.  720,  55  South.  844,  36  L.  R.  A. 
(N.  S.)  33;  Justice  v.  Justice,  170  Ky.  423,  186  S.  W.  148;  Barker  v.  Fuestal, 
103  Ark.  312,  147  S.  W.  45 ;  Lake  v.  Perry,  95  Miss.  550,  49  South.  569 ;  Blake 
v.  Hollandsworth,  71  W.  Va.  387,  76  S.  E.  814,  43  L.  R.  A.  (N.  S.)  714; 
Lanning  v.  Brown,  84  Ohio  St.  385,  95  N.  E.  921,  Ann.  Gas.  1912C,  772; 
Watson  v.  Peebles,  102  Miss.  725,  59  South.  881.  In  Chicago  Telephone  Co.  v. 
Schulz,  121  111.  App.  573,  the  rule  was  applied  to  the  disaffirmance  of  a  release 
of  damages.  Contingent  remaindermen  are  not  obliged  to  disaffirm  a  deed 
conveying  their  interest  on  attaining  majority  until  the  termination  of  the 
life  estate.  Steele  v.  Poe,  79  S.  C.  407,  60  S.  E.  951.  Compare  Parrish  v. 
Treadway,  267  Mo.  91,  183  S.  W.  580,  holding  that  minors,  who  executed  deeds 
to  their  contingent  remainders  in  lands  which  their  mother  held  as  life  ten- 
ant, could  not,  after  10  years  after  they  reached  their  majority,  disaffirm. 

»T  Leacox  v.  Griffith,  76  Iowa,  89,  40  N.  W.  109 ;  McCullough  v.  Finley,  69 
Kan.  705,  77  Pac.  696;  Johnston  v.  Gerry,  34  Wash.  524,  76  Pac.  258,  77  Pac. 
503 ;  Johnson  v.  Storie,  32  Neb.  610,  49  N.  W.  371. 


496  INFANTS  (Ch.  14 

of  it.88  Thus,  where  an  infant  payee  of  a  negotiable  note  trans- 
ferred it  by  indorsement  to  a  third  party,  and  the  maker  subse- 
quently paid  the  note  to  the  infant,  and  pleaded  such  payment  in 
a  suit  against  him  by  the  indorsee,  it  was  held  that  he  could  not 
avoid  the  infant's  indorsement."  So,  in  an  action  for  enticing 
away  a  servant,  it  was  held  that  the  defendant  could  not  escape 
liability  by  showing  that  the  servant  was  an  infant,  and  therefore 
was  not  bound  by  the  contract  of  service.1 

The  right  to  avoid  a  contract  on  the  ground  of  infancy  does  not 
pass  to  an  assignee  of  the  infant,  and  this  is  for  the  same  reason.2 
Thus,  where  an  assignee  in  insolvency  sought  the  aid  of  a  court 
of  equity  to  relieve  his  assignor's  estate  from  the  incumbrance  of  a 
mortgage  executed  while  the  assignor  was  an  infant,  it  was  held 
that,  since  the  right  of  avoidance  was  for  the  infant's  protection, 
he  alone  could  have  the  benefit  of  it,  and  that  the  right  did  not 
pass  to  the  assignee.8  Though  there  are  a  number  of  cases  to  the 
contrary,4  it  has  often  been  held  that  the  right  of  avoidance  does 
not  pass  to  those  who  are  the  infant's  privies  in  estate.5  If  the 
infant  becomes  insane,  his  right  to  avoid  his  contracts  passes  to 
his  guardian  or  conservator;6  and,  by  the  weight  of  authority,  on 
his  death,  the  right  passes  to  his  heirs  7  or  his  personal  representa- 


v.  Boycott,  2  H.  Bl.  511;  Nightingale  v.  Withington,  15  Mass. 
272,  8  Am.  Dec.  101;  Riley  v.  Dillon  &  Pennell,  148  Ala.  283,  41  South.  768; 
Chapman  v.  Duffy,  20  Colo.  App.  471,  79  Pac.  746  ;  Hill  v.  Weil,  202  Ala.  400, 
80  South.  586;  Crosby  v.  Ardoin  (Tex.  Civ.  App.)  145  S.  W.  709:  Wright 
v.  Buchanan,  287  111.  468,  123  N.  E.  53  ;  Smoot  v.  Ryan,  187  Ala.  396,  65  South. 
828  ;  Latrobe  v.  Dietrich,  114  Md.  8,  78  Atl.  983. 

»»  Nightingale  v.  Withington,  15  Mass.  272,  8  Am.  Dec.  101. 

1  Keane  v.  Boycott,  2  H.  Bl.  511. 

2  Whittingham's  Case,  8  Coke,  43  ;   Riley  v.  Dillon  &  Pennell,  148  Ala.  283, 
41  South.  768;   Austin  v.  Trustees,  8  Mete.  (Mass.)  196,  203,  41  Am.  Dec.  497; 
Mansfield  v.  Gordon,  144  Mass.  168,  10  N.  E.  773  ;   Hill  v.  Weil,  202  Ala.  400, 
SO  South.  536;    Levering  v.  Heighe,  2  Md.  Ch.  81;    Breckenridge's  Heirs  v. 
Ormsby,  1  J.  J.  Marsh.  (Ky.)  236,  19  Am.  Dec.  71  ;   Tyler,  Inf.  §  19. 

3  Mansfield  v.  Gordon,  144  Mass.  168,  10  N.  E.  773. 

*  Jackson  v.  Burchin,  14  Johns.  (N.  Y.)  124;  Beeler's  Heirs  v,  3ullitt's 
Heirs,  3  A.  K.  Marsh.  (Ky.)  280,  13  Am.  Dec.  161.  See  Breckenridge's  Heirs 
v.  Ormsby,  1  J.  J.  Marsh.  (Ky.)  236,  19  Am.  Dec.  71,  for  discussion  of  this  ques- 
tion, and  Ewell,  Lead.  Cas.  90,  for  collection  of  authorities. 

s  Whittingham's  Case,  8  Coke,  43;  Austin  v.  Trustees,  8  Mete.  (Mass.) 
196,  41  Am.  Dec.  497  ;  Hoyle  v.  Stowe,  19  N.  C.  320  ;  Harris  v.  Koss,  112  Ind. 
314,  13  N.  E.  873  ;  Singer  Mfg.  Co.  v.  Lamb,  81  Mo.  221  ;  Levering  v.  Heighe, 
2  Md.  Ch.  81. 

«  Chandler  v.  Simmons,  97  Mass.  508,  93  Am.  Dec.  117. 

i  Bac.  Abr.  "Infancy  and  Age''  (I)  6;  Tyler,  Inf.  §  19;  Illinois  Land  &  Loan 


§§  210-211)  CONTRACTS  OP  INFANTS  497 

tives.8  The  reason  of  the  rule  extends  only  to  them,  it  has  been 
said,  because  the  privilege  is  conferred  for  the  sole  benefit  of  the 
infant.  While  living,  he  should  be  the  exclusive  judge  of  that 
benefit;  and,  when  he  is  dead,  those  alone  should  interfere  who 
legally  represent  him.  If  his  contracts  could  be  avoided  by  third 
persons,  the  principle  would  operate,  not  for  his,  but  for  their,  bene- 
fit ;  not  when  he  chose  to  avail  himself  of  his  privileges,  but  when 
strangers  elected  to  do  it. 

'The  other  party  to  the  contract,  if  he  is  not  under  any  disability 
himself,  cannot  avoid  it,  either  on  the  ground  of  the  other's  infancy, 
or  on  the  ground  that  there  is  no  mutuality.9  He  is  bound  if  the  in- 
fant chooses  to  hold  him.  A  court  of  equity,  however,  will  not 
grant  an  infant  specific  performance  of  the  contract  by  the  adult,  for 
it  does  not  exercise  its  power  to  compel  specific  performance,  un- 
less there  is  mutuality  of  remedy.10  What  has  been  said  above  ap- 
plies, of  course,  only  to  the  voidable  contracts  of  infants.  A  con- 
tract which  is  held  to  be  void  is  an  absolute  nullity,  and  may  be 
attacked  by  any  one. 


SAME— WHAT  CONSTITUTES  RATIFICATION 

210.  In  some  jurisdictions,  by  statute,  ratification  of  a  contract  by 

an  infant  must  be  in  writing.  In  the  absence  of  such  a 
provision,  ratification  may  be  by  an  express  new  promise, 
either  written  or  oral,  or,  by  the  weight  of  authority,  it 
may  be  implied  from  declarations  or  conduct  showing  an 
intention  to  adopt  the  contract  as  binding. 

211.  By  the  weight  of  authority,  the  promise  must  be  made  or  the 

acts  done  by  the  infant  with  knowledge  of  his  legal  right 
to  avoid  the  contract. 


Co.  v.  Bonner,  75  111.  315 ;  Levering  v.  Heighe,  2  Md.  Ch.  81 ;  HARVEY  v. 
BRIGGS,  68  Miss.  60,  8  South.  274,  10  L.  R.  A.  62,  Cooley  Gas.  Persons  and: 
Domestic  Relations,  270;  Blake  v.  Hollandsworth,  71  W.  Va.  387,  76  S.  E.  814, 
43  L.  R.  A.  (N.  S.)  714;  Veal  v.  Fortson,  57  Tex.  482. 

s  Tyler,  Inf.  §  16 ;  Ewell,  Lead.  Cas.  90,  with  collection  of  cases. 

e  Bac.  Abr.  "Infancy  and  Age"  (I)  4 ;  2  Kent.  Comm.  236.  See,  also,  Wright 
v.  Buchanan.  287  111.  468,  123  N.  E.  53 ;  Youngblood  v.  Hoeffle  (Tex.  Civ.  App.> 
201  S.  W.  1057. 

10  Flight  v.  Bolland,  4  Russ.  298.  And  see  Watson  v.  Ruderman,  79  Com. 
687,  66  Atl.  515. 

TIFF.P.&  D.REL.(3o  ED.)— 32 


498  INFANTS  (Ch.  14 

In  some  jurisdictions  it  has  been  expressly  provided  by  statute 
that,  except  in  certain  cases,  no  action  shall  be  maintained  on  any 
contract  made  by  an  infant,  unless  he,  or  some  person  lawfully  au- 
thorized, shall  have  ratified  it  in  writing  after  he  attained  his  ma- 
jority.11 

In  the  absence  of  such  a  provision  as  this — and  it  exists  in  very 
few  jurisdictions — there  need  be  no  writing  at  all  to  constitute  a 
ratification  of  a  contract  made  by  an  infant.  Ratification  may  be 
by  words  or  by  acts.  As  to  the  sufficiency  of  particular  words  or 
acts  to  constitute  a  ratification,  the  authorities  are  not  agreed.  On 
the  contrary,  there  is  an  irreconcilable  conflict  in  the  decisions,  and 
what  would  be  sufficient  in  one  state  might  not  be  so  in  another. 
The  importance  of  this  branch  of  our  subject,  and  the  uncertainty 
in  the  decisions,  require  that  it  be  considered  at  some  length.  The 
authorities  seem  to  agree  that  there  must  be  a  new  promise  by  the 
infant  after  he  attains  his  majority.12  They  also  seem  to  agree, 
however,  that  there  need  not  be  an  express  promise,  but  that  the 
promise  may  be  implied  from  his  declarations  or  his  conduct,  just 
as  an  original  promise  may  be  implied  from  words  or  conduct.  The 
conflict  in  the  cases  is  as  to-  the  inference  to  be  drawn  from  particu- 
lar acts  or  declarations. 

Many  of  the  courts  hold  that  a  mere  acknowledgment  of  the  con- 
tract or  debt,  whether  by  words  or  by  acts,  as  by  a  part  payment, 
which  would  be  sufficient  to  revive^a  debt  barred  by  the  statute  of 
limitations,  will  not  constitute  a  ratification,  but  that  there  must  be 
a  new  promise.18  It  was  said  by  the  Massachusetts  court:  "By 

11  It  was  so  provided  by  the  English  statute  (St.  9  Geo.  IV,  c.  14,  §  5)  known 
as  "Lord  Tenderden's  Act."     This  statute  has  been  repealed  by  St.  38  &  39 
Viet.  c.  66.    There  are  similar  provisions  in  a  few  of  our  states.     See  Thur- 
low  v.  Gilmore,  40  Me.  378;  Lamkin  &  Foster  v.  Le  Doux,  101  Me.  581,  64  Atl. 
1048,  8  L.  R.  A.  (N.  S.)  104;  Exchange  Bank  of  Ft.  Valley  v.  McMillan,  76  S. 
C.  561,  57  S.  E.  630.    And  see  Barnes  v.  American  Soda  Fountain  Co.,  32  Okl. 
81,  121  Pac.  250 ;  Steele  v.  Poe,  79  S.  C.  407,  60  S.  E.  951. 

12  But  there  need  not  be  a  new  consideration.    Bill  v.  Buckhalter,  176  Ala. 
62,  57  South.  460 ;  Edmunds  v.  Mister,  58  Miss.  765. 

is  Edmunds  v.  Mister,  58  Miss.  765 ;  Whitney  v.  Dutch.  14  Mass.  457,  7  Am. 
Dec.  229 ;  Smifn  v.  Mayo,  9  Mass.  62,  6  Am.  Dec.  28 ;  Thrupp  v.  Fielder,  2.  Esp. 
628;  Proctor  v.  Sears,  4  Allen  (Mass.)  95;  Hale  v.  Gerrish,  8  N.  H.  374:  Tib- 
bets  v.  Gerrish,  25  N.  H.  41,  57  Am.  Dec.  307 ;  Wilcox  v.  Roath,  12  Conn.  550 ; 
Catlin  v.  Haddox,  49  Conn.  492,  44  Am.  Rep.  249;  Stokes  v.  Brown,  3  Pin. 
(Wis.)  311 ;  Kendrick  v.  Neisz,  17  Colo.  506,  30  Pac.  245;  Fetrow  v.  Wiseman, 
40  Ind.  148.  In  Edmunds  v.  Mister,  supra,  it  was  said  that  executory  con- 
tracts of  infants  "can  be  ratified  at  common  law  only  by  an  act  or  agreement 


§§  210-211)  CONTRACTS  OF  INFANTS  499 

the  authorities,  a  mere  acknowledgment  of  the  debt,  such  as  would 
take  a  case  out  of  the  statute  of  limitations,  is  not  a  ratification  of 
a  contract  made  during  minority.  The  distinction  is  undoubtedly 
well  taken.  The  reason  is  that  a  mere  acknowledgment  avoids  the 
presumption  of  payment  which  is  created  by  the  statute  of  limita- 
tions ;  whereas  the  contract  of  an  infant  may  always,  except  in  cer- 
tain 'cases  sufficiently  known,  be  voided  by  him  by  plea,  whether 
he  acknowledges  the  debt  or  not;  and  some  positive  act  or  decla- 
ration on  his  part  is  necessary  to  defeat  his  power  of  avoiding 
it."  14  This  rule  is  clearly  right  if  it  is  intended  to  hold  that  a  mere 
acknowledgment  that  the  contract  was  made  by  the  infant  is  not 
a  ratification ;  but  it  is  not  sound  if  it  is  intended  to  hold  that  an 
infant  does  not  ratify  his  contract  by, acknowledging,  after  he  has 
attained  his  majority,  that  it  is  then  binding  upon  him.  This  is  a 
ratification.15  By  the  great  weight  of  opinion,  the  question  is,  in 
all  cases,  whether  the  words  or  acts  of  the  infant  after  he  has  at- 
tained his  majority  show  an  intention  on  his  part  to  adopt  the 
contract  as  binding  upon  him,  and,  if  they  do  show  such  an  in- 
tention, a  new  promise  or  ratification  is  to  be  implied.16  As  was 
said  by  the  Vermont  court  in  a  late  case :  "Where  the  declarations 
or  acts  of  the  individual  after  becoming  of  age  fairly  and  justly 
lead  to  the  inference  that  he  intended  to,  and  did,  recognize  and 
adopt  as  binding  an  agreement  executory  on  his  part,  made  during 

•which  possesses  all  the  ingredients  necessary  to  a  new  contract,  save  only  a 
new  consideration.  The  contract  made  during  minority  will  furnish  the  con- 
sideration, but  it  will  furnish  nothing  more.  All  else  must  be  supplied  by, 
the  new  agreement.  A  mere  acknowledgment  of  the  debt  is  not  sufficient,  but 
there  must  be  an  express  promise  to  pay,  voluntarily  made." 

i*  Whitney  v.  Dutch,  14  Mass.  457,  7  Am.  Dec.  229. 

IB  Henry  v.  Root,  33  N.  Y.  526;  American  Mortg.  Co.  of  Scotland  v.  Wright, 
101  Ala.  658,  14  South.  399 ;  Little  v.  Duncan,  9  Rich.  (S.  O.)  55,  64  Am.  Dec. 
760.  A  declaration  by  the  promisor,  after  attaining  his  majority,  that  he 
would  not  take,  advantage  of  his  infancy,  is  not  effective  as  a  ratification,  if 
made  after  action  on  the  contract  has  been  begun.  Merriam  v.  Wilkins,  6  N. 
H.  432,  25  Am.  Dec.  472. 

ie  HATCH  v.  HATCH'S  ESTATE,  60  Vt.  160,  13  Atl.  791,  Cooley  Cas.  Per- 
sons and  Domestic  Relations,  271 ;  Tobey  v.  Wood,  123  Mass.  88,  25  Am.  Rep. 
27 ;  Harris  v.  Wall,  1  Exch.  130 ;  Henry  v.  Root,  33  N.  Y.  526 ;  Middleton  v. 
Hoge,  5  Bush  (Ky.)  478;  Baker  v.  Kennett,  54  Mo.  88;  Kendrick  v.  Neisz,  17 
Colo.  506,  30  Pac.  245;  Wheaton  v.  East,  5  Yerg.  (Tenn.)  41,  62,  26  Am.  Dec. 
251 ;  Hale  v.  Gerrish,  8  N.  H.  374 ;  Emmons  v.  Murray,  16  N.  H.  385 ;  Drake 
v.  Wise,  36  Iowa,  476 ;  Thomasson  v.  Boyd,  13  Ala.  419.  A  qualified  promise, 
depending  on  a  contingency,  is  not  sufficient.  Edgerly  v.  Shaw,  25  N.  H.  514, 
57  Am.  Dec.  349;  Proctor  v.  Sears,  4  Allen  (Mass.)  95. 


500  INFANTS  (Ch.  14 

infancy,  and  intended  to  pay  the  debt  then  incurred,  we  think .  it  is 
sufficient  to  constitute  ratification,  provided  the  declarations  were 
freely  and  understandingly  made,  or  the  acts  in  like  -manner  per- 
formed, and  with  knowledge  that  he  was  not  legally  liable."  1T  So, 
in  a  late  Massachusetts  case,  it  was  said:  "Ratification  may  be 
shown  either  by  proof  of  an  express  promise  to  pay  the  debt,  made 
by  the  infant  after  he  became  of  age,  or  by  proof  of  .such  acts  of  the 
infant,  after  he  became  of  age,  as  fairly  and  justly  lead  to  the  infer- 
ence that  he  intended  to  ratify  the  contract,  and  pay  the  debt."  18 
And  in  an  English  case  it  was  said :  "Any  act  or  declaration  which 
recognizes  the  existence  of  the  promise  as  binding  is  a  ratification 
of  it."  19 

To  illustrate:  It  has  been  held,  and  very  properly,  that  a  mort- 
gage given  by  an  infant  is  ratified  by  payment  of  the  interest  cou- 
pon notes  after  becoming  of  age,20  and  that  giving  a  watch  in  part 
payment  of  a  note  executed  during  minority  is  a  ratification  of  the 
note.21  This  is  clearly  a  recognition  of  the  contract,  not  merely  as 
having  been  made,  but  as  binding.  So,  it  has  been  held  that  bring- 
ing a  suit  to  enforce  payment  of  a  note  is  a  ratification  of  the  con- 
tract in  which  the  note  was  given.22 

The  cases  are  uniform  to  the  effect  that,  where  an  infant  pur- 
chases or  otherwise  acquires  property  under  a  contract,  he  ratifies 
the  contract  if  he  retains  and  uses  the  property  after  h~  becomes 
of  age,  or  if  he  disposes  of  it  by  sale,  mortgage,  or  otherwise.  The 
reason  of  this  is  that  he  cannot  honestly  retain  or  dispose  of  the 
property  except  upon  the  assumption  that  the  contract  by  which  he 
acquired  it  is  valid,  and  therefore  such  conduct,  if  unexplained, 
fairly  and  justly  leads  to  the  inference  of  a  promise  or  undertaking 
after  becoming  of  age,  to  pay  for  the  property.23  The  New  York  " 

"  HATCH  v.  HATCH'S  ESTATE,  60  Vt.  160,  13  Atl.  791,  Cooley  Cas.  Per- 
sons and  Domestic  Relations,  271. 

is  Tobey  v.  Wood,  123  Mass.  88,  25  Am.  Rep.  27.  . 
i»  Harris  v.  Wall,  1  Exch.  130. 

20  American  Mortg.  Co.  of  Scotland  v.  Wright,  101  Ala.  658,  14  South.  399. 
€ontra,  Rapid  Transit  Land  Co.  v.  Sanford  (Tex.  Civ.  App.)  24  S.  W.  587. 

21  Little  v.  Duncan,  9  Rich.  (S.  C.)  55,  64  Am.  Dec.  760. 
«2  Merrill  v.  Aden,  19  Vt.  505. 

23  Tobey  v.  Wood,  123  Mass.  89,  25  Am.  Rep.  27;  Boyden  v.  Boyden,  9  Mete. 
(Mass.)  519;  Chandler  v.  Simmons,  97  Mass.  508,  93  Am.  Dec.  117;  Smith  v. 
Kelley,  13  Mete.  (Mass.)  309;  Aldrich  v.  Grimes,  10  N.  H.  194;  Robbins  v. 
Eaton,  10  N.  H.  561;  Lawson  v.  Lovejoy,  8  Greenl.  (Me.)  405,  23  Am.  Dec.  526; 
Luce  v.  Jestrab,  12  N.  D.  548,  97  N.  W.  848 ;  Ward  v.  Ward,  143  Ky.  91.  136 
S.  W.  137 ;  Boody  v.  McKenney,  23  Me.  517 ;  HATCH  v.  HATCH'S  ESTATE, 


§§  210-211)  CONTRACTS  OF  INFANTS  501 

court  even  went  so  far  as  to  hold,  in  applying  this  doctrine,  that 
where  an  infant,  who  had  taken  the  note  of  a  third  person  in  pay- 
ment for  work,  retained  the  note  for  eight  months  after  attaining 
his  majority  before  offering  to  return  it,  and  in  the  meantime  the 
maker  of  the  note  became  insolvent,  such  retention  of  the  note 
was  a  ratification  of  the  contract  under  which  it  was  taken.2* 

Acquiescence  after  majority,  if  for  an  unreasonable  time,  is  held 
in  some  jurisdictions  to  amount  to  a  ratification  of  certain  con- 
tracts requiring  disaffirmance ; 25  but,  in  the  case  of  executory  con- 
tracts, mere  silence  or  acquiescence,  unaccompanied  by  acts  in- 
dicating an  intention  to  abide  by  the  contract,  will  not  amount  to 
a  ratification.26  While  in  some  jurisdictions  mere  acquiescence  is 
not  evidence  of  the  affirmance  of  an  infant's  deed,27  yet,  where  this 
is  accompanied  by  other  circumstances  indicating  a  clear  intention 


60  Vt.  160,  13  Atl.  791,  Cooley  Gas.  Persons  and  Domestic  Relations,  271 ;  Rob- 
inson v.  Hoskins,  14  Bush  (Ky.)  393;  Cheshire  v.  Barrett,  4  McCord  (S.  C.) 
241,  17  Am.  Dec.  735.  If  the  retention,  use,  or  disposal  of  the  property  is  not 
inconsistent  with  the  repudiation  of  the  contract,  there  is  no  ratification. 
Todd  v.  Clapp,  118  Mass.  495 ;  Tobey  v.  Wood,  123  Mass.  88,  25  Am.  Rep.  27 ; 
House  v.  Alexander,  105  Ind.  109,  4  N.  E.  891,  55  Am.  Rep.  189.  Thus,  reten- 
tion of  the  property,  after  tendering  it  and  being  met  by  a  refusal,  is  not-  to  be 
construed  as  a  ratification.  House  v.  Alexander,  supra.  But  see  Fried  v. 
Overland  Motor  Co.,  202  111.  App.  203,  holding  that  one  who  purchases  an  auto- 
mobile during  his  minority  and  uses  it  for  nearly  a  month  after  he  becomes  of 
age  before  he  tenders  it  to  the  seller,  and  continues,  to  retain  possession  of  it 
and  use  it  for  nearly  a  year  after  arriving  at  legal  age  and  after  refusal  of  the 
seller  to  accept  the  machine,  must  be  deemed  to  have  ratified  the  purchase. 
Where  an  infant  gave  a  note  and  mortgage  to  secure  the  purchase  price  of 
land  conveyed  to  him,  his  retention  of  the  land  under  claim  of  ownership  after 
majority  is  a  ratification  of  the  transaction.  Callis  v.  Day,  38  Wis.  643.  See, 
also,  Uy  Soo  Lim  v.  Tan  Unchuan,  38  Phil.  Rep.  552,  holding  that  the  right  of 
a  minor  to  rescind,  upon  attaining  his  majority,  a  contract  entered  into  dur- 
ing his  minority  is  subject  to  the  conditions  (1)  that  the  election  to  rescind 
must  be  made  within  a  reasonable  time  after  majority  and  (2)  that  all  of 
the  consideration  which  was  in  the  minor's  possession  upon  his  reaching 
majority  must  be  returned.  The  disposal  of  any  part  of  the  consideration 
after  the  attainment  of  majority  imports  an  affirmance  of  the  contract. 

24  Delano  v.  Blake,  11  Wend.  (N.  Y.)  85,  25  Am.  Dec.  617.    And  see  Thomas- 
son  v.  Boyd,  13  Ala.  419. 

25  Ante,  p.  494.  , 

26  Durfee  v.  Abbott,  61  Mich.  471,  28  N.  W.  521 ;  Tyler  v.  Gallop's  Estate, 
68  Mich.  185,  35  N.  W.  902,  13  Am.  St.  Rep.  336 ;  Tobey  v.  Wood,  123  Mass.  88, 
25  Am.  Rep.  27;  Watson  v.  Peebles,  102  Miss.  725,  59  South.  881;  International 
Text-Book  Co.  v.  Connelly,  206  N.  Y.  188,  99  N.  E.  722,  42  L.  R.  A.  (N.  S.)  1115, 
affirming  140  App.  Div.  939,  125  N.  Y.  Supp.  1125. 

27  Syck  v.  Hellier,  140  Ky.  388,  131  S.  W.  30.    And  see  ante,  p.  494. 


502  INFANTS  (Ch.  14 

to  affirm,  the  deed  cannot  thereafter  be  disaffirmed.28  Thus,  a 
person  who  has  conveyed  land  during  minority  loses  his  right  to 
disaffirm  if  he  stands  by  and  sees  his  grantee  make  extensive  im- 
provements on  the  land,29  or  if  he  rents  the  land  from  his  grantee.80 
When  an  infant  gives  a  lease  of  lands,  and,  after  majority,  accepts 
rent,  this  will  amount  to  a  ratification  of  the  lease,81  and  acceptance 
after  majority  of  the  proceeds  of  a  sale  of  real  estate  is  a  ratifica- 
tion of  the  conveyance.82  If  an  infant  purchases  or  exchanges  land, 
and  remains  in  possession  after  majority,  this  will  constitute  an 
affirmance  of  the  contract.83  Likewise,  the  sale  after  majority  of 


zs  1  Pars.  Cont.  323 ;  Tucker  v.  Moreland,  10  Pet.  58,  9  L.  Ed.  345 ;  Irvine  v. 
Irvine,  9  Wall.  617,  19  L.  Ed.  800.  A  deed  by  a  married  woman,  not  properly 
executed,  and  with  no  probate,  or  privy  examination  taken,  was  no  ratifica- 
tion of  a  prior  deed  executed  by  her  while  a  minor.  Gaskins  v.  Allen,  137  N. 
C.  426,  49  S.  E.  919. 

a»  Wallace's  Lessee  v.  Lewis,  4  Har.  (Del.)  75;  Wheaton  v.  East,  5  Yerg. 
(Tenn.)  41,  62,  26  Am.  Dec.  251 ;  Davis  v.  Dudley,  70  Me.  236,  35  Am.  Rep.  318 ; 
Hartman  v.  Kendall,  4  Ind.  403;  Henson  v.  Gulp,  157  Ky.  442,  163  S.  W.  455; 
Dolph  v.  Hand,  156  Pa.  91,  27  Atl.  114,  36  Am.  St.  Rep.  25.  But  see  Brantley 
v.  Wolf,  60  Miss/ 420. 

so  Ingram  v.  Ison,  80  S.  W.  787,  26  Ky.  Law  Rep.  48. 

siAshfleld  v.  Ashfield,  W.  Jones,  157;  Paramour  v.  Tardley,  Plowd.  539, 
545a;  Wimberly  v.  Jones,  Ga.  Dec.  91,  pt.  1. 

32  Darraugh  v.  Blackford,  84  Va.  509,  5  S.  E.  542;  DAMRON  v.  RATLIFF, 
123  Ky.  758,  97  S.  W.  401,  Cooley  Cas.  Persons  and  Domestic  Relations,  274 ; 
Kinard  v.  Proctor,  68  S.  C.  279,  47  S.  E.  390 ;  Pursley  v.  Hays,  17  Iowa,  310 ; 
Clark  v.  Kidd,  148  Ky.  479,  146  S.  W.  1097 ;  La  Cotts  v.  Quertermous,  84  Ark. 
610,  107  S.  W.  167 ;  Davidson  v.  Young,  38  111.  145 ;  Ferguson  v.  Bell's  Adm'r, 
17  Mo.  347.  An  otter  to  give  a  confirmatory  deed  on  payment  of  the  balance  of 
the  purchase  money  is  not  an  aflirmance.  CRAIG  v.  VAN  BEBBER,  100  Mo. 
584,  13  S.  W.  906,  18  Am.  St.  Rep.  569,  Cooley  Cas.  Persons  and  Domestic  Rela- 
tions, 278.  Where  both  children  of.  deceased  were  minors,  acceptance  by  them 
of  part  of  proceeds  of  illegal  sale  by  administrator  of  their  deceased  father's 
leasehold  did  not  constitute  ratification  of  such  sale.  Orchard  v.  Wright-Dal- 
ton-Bell-Anchor  Store  Co.  (Mo.)  197  S.  W.  42.  Payments  in  accordance  with 
the  terms  of  a  contract  are  not  a  ratification,  if  it  appears  they  were  made 
out  of  payer's  county  and  not  in  recognition  of  any  legal  obligation.  Parsons 
v.  Teller,  188  N.  Y.  318,  80  N.  E.  930,  reversing  111  App.  Div.  637,  97  N.  Y.. 
Supp.  808. 

SB  Co.  Litt  2b;  Cecil  v.  Salisbury,  2  Vern.  225;  Henry  v.  Root,  33  N.  Y.  526; 
Hubbard  v.  Cummings,  1  Greenl.  (Me.)  11 ;  Robbins  v.  Eaton,  10  N.  H.  561 ; 
Cheshire  v.  Barrett,  4  McCord  (S.  C.)  241,  17  Am.  Dec.  735;  Ellis  v.  Alford, 
64  Miss.  8,  1  South.  155 ;  Ihley  v.  Padgett,  27  S.  C.  300,  3  S.  E.  468 ;  Buchan- 
an v.  Hubbard,  119  Ind.  187,  21  N.  E.  538.  Where  the  infant,  after  arriving 
at  majority,  with  full  knowledge  of  all  facts  relating  to  exchange  of  his  land 
for  other  land,  mortgaged  that  received  in  exchange,  transaction  was  ratified. 
Perkins  v.  Middleton  (Okl.)  166  Pac.  1104. 


§§  210-211)  CONTRACTS  OP  INFANTS  503 

land  purchased  by  an  infant,34  or  its  continued  use  and  occupa- 
tion,35 is  a  ratification  of  a  mortgage  'given  to  secure  the  purchase 
money;  and  this  is  true  although  the  mortgage  is  given  to  a  third 
person,  provided  the  conveyance  and  mortgage  are  made  at  the 
same  time,  so  as  to  constitute  one  transaction.38  If  an  infant 
makes  a  mortgage,  and  after  majority  conveys  the  land,  stating 
that  the  conveyance  is  made  subject  to  the  mortgage,  this  recital 
is  a  confirmation  of  the  mortgage.37 

Mere  failure  of  an  infant,  on  attaining  his  majority,  to  disaffirm 
a  partnership  agreement  entered  into  during  his  minority,  without 
any  acts  as  a  partner,  will  not  constitute  a  ratification  of  contracts 
entered  into  by  the  firm ;  but  a  failure  to  disaffirm,  followed  by  acts 
as  a  partner,  may.  The  cases  are  at  variance  as  to  what  acts  will 
amount  to  such  a  ratification.  It  has  been  held  that  transaction  of 
the  firm  business  after  majority,  payment  of  firm  debts,  and  partic- 
ipation in  the  profits,  is  not  sufficient;  38  but  there  are  cases  to  the 
contrary.39 

8*Uecker  v.  Koehn,  21  Neb.  559,  32  N.  W.  583,  59  Am.  Rep.  849;  Hubbard 
v.  Cummings,  1  Greenl.  (Me.)  11;  Young  v.  McKee,  13  Mich.  552;  Lynde  v. 
Budd,  2  Paige  (N.  Y.)  191,  21  Am.  Dec.  84.  A  minor's  contract  to  deed  to  her 
mother  lands  received  from  her  mother  in  a  divorce  settlement  is  voidable, 
and  is  ratified  by  the  daughter  deeding  such  property  to  her  mother  after  be- 
coming of  age.  Haldeman  v.  Weeks,  90  Or.  201,  175  Pac.  445. 

85  Bobbins  v.  Eaton,  10  N.  H.  561;  Callis  v.  Day,  38  Wis.  643;  Gulf,  O.  &  S. 
F.  Ry.  Co.  v.  Lemons  (Tex.)  206  S.  W.  75,  5  A.  L.  R.  943;  Hubbard  v.  Cummings, 
1  Greenl.  (Me.)  11.  When  an  infant  took  a  deed  of  land,  and  gave  back  a 
purchase-money  mortgage,  which  was  subsequently  foreclosed,  by  bringing 
ejectment  against  the  purchaser,  she  was  held  to  have  confirmed  the  mort- 
gage. Kennedy  v.  Baker,  159  Pa.  146,  28  Atl.  252;  Bigelow  v.  Kinney,  3  Vt. 
353,  21  Am.  Dec.  589. 

SB  Dana  v.  Coombs,  6  Greenl.  (Me.)  89,  19  Am.  Dec.  194 ;  Heath  v.  West,  28 
N.  H.  101.  When  the  conveyance  and  mortgage  are  not  one  transaction,  then 
it  is  no  such  ratification.  Robbins  v.  Eaton,  10  N.  H.  561. 

ST  Boston  Bank  v.  Chamberlin,  15  Mass.  220;  Phillips  v.  Green,  5  T.  B. 
Mon.  (Ky.)  344;  Losey  v.  Bond,  94  Ind.  67;  Allen  v.  Poole,  54  Miss.  323.  A  re- 
'cital  in  a  mortgage  made  after  majority,  that  the  property  is  subject  to  a 
prior  mortgage,  is  a  ratification  of  such  prior  mortgage.  Ward  v.  Anderson, 
111  N.  C.  115,  15  S.  E.  933.  See,  also,  Allen  v.  Anderson  &  Anderson  (Tex. 
Civ.  App.)  06  S.  W.  54,  holding  that  where  an  infant  conveyed  land  which  by 
mesne  conveyances  passed  to  a  third  person  as  a  remote  grantee,  and  on  at- 
taining majority,  conveyed  the  land  for  a  valuable  consideration  to  such  third 
person,  the  conveyance  did  not  ratify  the  former  deed,  but  vested  in  the  third 
person  the  infant's  title. 

38  Minock  v.  Shortridge,  21  Mich.  304 ;  Martin  v.  Tobin,  123  Mass.  85. 

s»  Miller  v.  Sims,  2  Hill  (S.  C.)  479;  Salinas  v.  Bennett,  33  S.  C.  285,  11  S. 
B.  968. 


504  INFANTS  (Ch.  14 

The  acts  relied  upon  as  constituting  a  ratification  must  be  un- 
equivocal, and  must  reasonably  lead  to  the  inference  that  there  was 
an  intention  to  adopt  and  be  bound  by  the  contract.  Unless  they 
show  such  an  intention,  ratification  cannot  be  implied.40  Thus, 
where  an  infant  becomes  a  member  of  a  firm,  his  remaining  in  the 
firm  after  becoming  of  age,  and  sharing  in  the  profits,  is  not  a  rati- 
fication of  debts  contracted  by  the  firm  during  his  minority,  of 
which  he  is  ignorant,41  or  which  he  thinks  have  been  paid.42 

A  new  promise  to  a  stranger  is  not  sufficient  to  constitute  a  rati- 
fication ;  it  must  be  made  to  the  other  party  or  to  his  agent.48  If 
the  promise  is  conditional,  as  in  the  case  of  a  promise  to  pay  when 
able,  no  action  can  be  maintained  without  showing  performance  or 
happening  of  the  condition.44 

In  an  early  English  case  it  was  said,  in  effect,  that  a  person  will 
not  be  bound  by  a  ratification  of  his  contract  made  during  infancy, 
unless  he  knows  that  he  not  liable  in  law.45  This  proposition 
was  mere  dictum,48  but  it  has  frequently  been  approved,  and  there 
are  many  decisions  supporting  it.47  There  are  some  cases,  how- 

40  Todd  v.  Clapp,  118  Mass.  495;  Tobey  v.  Wood,  123  Mass.  88,  25  Am.  Rep. 
27:  House  v.  Alexander.  105  Ind.  109,  4  N.  E.  891,  55  Am.  Rep.  189;  Crabtree 
v.  May,  1  B.  Mon.  (Ky.)  289 ;  Fletcher  v.  A.  W.  Koch  Co.  (Tex.  Civ.  App.)  189  S. 
W.  501 ;  Grolier  Soc.  of  London  v.  Forshay  (Sup.)  157  N.  Y.  Supp.  776 ;  Coe  v. 
Moon,  260  111.  76,  102  N.  E.  1074 ;  Hobbs  v.  Hinton  Foundry  Machine  &  Plumb- 
ing Co.,  74  W.  Va.  443,  82  S.  E.  267,  Ann.  Cas.  1917D,  410;  Martin  v.  Tobin, 
123  Mass.  85;  Parsons  v.  Teller,  188  N.  Y.  318,  80  N.  E.  930,  reversing  111  App. 
Div.  637,  97  N.  Y.  Supp.  808.    Where  a  minor  after  becoming  of  age  does  any 
act  clearly  showing  an  intention  to  affirm  a  contract  made  by  him  during  his 
minority,   he  cannot  afterwards  repudiate  it.     Fried  v.  Overland  Motor   Co., 
202  111.  App.  203. 

41  Crabtree  v.  May,  1  B.  Mon.  (Ky.)  289. 

42  Tobey  v.  Wood,  123  Mass.  88,  25  Am.  Rep.  27. 

43Rigelow  v.  Grannis,  2  Hill  (N.  Y.)  120;  Goodsell  v.  Myers,  3  Wend.  (N. 
Y.)  479. 

44Everson  v.  Carpenter,  17  Wend.  (N.  Y.)  419;  Thompson  v.  Lay,  4  Pick. 
(Mass.)  48,  16  Am.  Dec.  325;  Kendrick  v.  Neisz,  17  Colo.  506,  30  Pac.  245. 

45  Harmer  v.  Killing,  5  Esp.  102. 

4e  Morse  v.  Wheeler,  4  Allen  (Mass.)  570. 

47  Hinely  v.  Margaritz,  3  Pa.  428;  Curtin  v.  Patton,  11  Serg.  &  R.  (Pa.)  305; 
Trader  v.  Lowe,  45  Md.  1;  Davidson  v.  Young,  38  111.  145;  Turner  v.  Gaither, 
83  N.  C.  357,  35  Am.  Rep.  574;  Thing  v.  Libbey,  16  Me.  55;  Burdett  v.  Wil- 
liams (D.  C.)  30  Fed.  697;  Reed  v.  Boshears,  4  Sneed  (Tenn.)  118;  Norris  v. 
Vance,  3  Rich.  (S.  C.)  164;  Fletcher  v.  A.  W.  Koch  Co.  (Tex.  Civ.  App.)  189  S. 
W.  501;  Manning  v.  Gannon,  44  App.  D.  C.  98;  Petty  v.  Roberts,  7  Bush.  (Ky.) 
410;  Smith  v.  Mayo,  9  Mass.  62,  6  Am.  Dec.  28;  Ford  v.  Phillips,  1  Pick.  (Mass.) 
202 ;  Owen  v.  Long,  112  Mass.  403.  A  confirmatory  deed  given  after  majority, 
in  ignorance  of  legal  rights,  has  been  set  aside  in  equity.  Wilson  v.  Insur- 


§  212)  CONTRACTS  OF  INFANTS  505 

ever,  which  hold  that  such  knowledge  on  the  part  of  the  infant  is 
not  necessary,  on  the  ground  that  ignorance  of  law  cannot  avail.48 
In  the  absence  of  evidence  to  the  contrary,  the  late  infant  will  be 
presumed  to  have  had  knowledge  of  his  legal  rights.49 


SAME— WHAT  CONSTITUTES  DISAFFIRMANCE 

212.  A  contract  is  disaffirmed  by  any  conduct  which  is  inconsistent 
with  the  existence  of  the  contract,  and  shows  an  intention 
to  repudiate  it. 

Disaffirmance  of  a  contract,  like  ratification,  may  be  implied,  and 
it  will  generally  be  implied  from  any  conduct  that  is  clearly  incon- 
sistent with  the  existence  of  the  contract.60  Where,  for  instance, 
a  person  who  has  sold  or  mortgaged  land  or  goods  while  an  infant 
sells,  leases,  or  mortgages  the  same  to  another  after  attaining  his 
majority,  this  is  a  disaffirmance  of  his  contract.51  The  bringing  of 

ance  Co.,  60  Md.  150.  But  see  Morse  v.  Wheeler,  4  Allen  (Mass.)  570;  An- 
derson v.  Soward,  40  Ohio  St.  325,  48  Am.  Rep.  687,  and  Rubin  v.  Strandberg, 
288  111.  64,  122  N.  E.  808,  5  A.  L.  R.  133,  where  it  is  shown  that,  in  most  of  the 
cases  cited  as  supporting  the  rule  that  knowledge  of  the  right  to  disaffirm  is 
essential,  the  holding  was  not  necessary  to  the  decision,  and  the  principle  is 
stated  in  general  language  only,  not  being  involved  in  the  case. 

48  Anderson  v.  Soward,  40  Ohio  St.  325,  48  Am.  Rep.  687;  Clark  v.  Van 
Court,  100  Ind.  113,  50  Am.  Rep.  774;  Rubin  v.  Strandberg,  288  111.  64,  122  N. 
E.  808,  5  A.  L.  R.  133;  American  Mortg.  Co.  of  Scotland  v.  Wright,  101  Ala. 
658,  14  South.  399;  Ring  v.  Jamison,  66  Mo.  424;  Morse  v.  Wheeler,  4  Alien 
(Mass.)  570. 

49  Taft  v.  Sergeant,  18  Barb.  (N.  Y.)  320;   HATCH  v.  HATCH'S  ESTATE, 
60  Vt.  160,  13  Atl.  791,  Cooley  Cas.  Persons  and  Domestic  Relations,  271. 

sopyne  v.  Wood,  145  Mass.  558,  14  N.  E.  775;  Vent  v.  Osgood,  19  Pick. 
(Mass.)  572;  Whitmarsh  v.  Hall,  3  Denio  (N.  Y.)  375;  Dallas  v.  Hollingsworth, 
3  Ind.  537;  Putnal  v.  Walker,  61  Fla.  720,  55  South.  844,  36  L.  R.  A.  (N.  S.)  33; 
Hatton  v.  Bodon  Lumber  Co.,  57  Tex.  Civ.  App.  478,  123  S.  W.  163;  Stanhope  v. 
Shambow,  54  Mont.  360,  170  Pac.  752.  An  infant,  desiring  to  avoid  a  contract, 
must  signify  his  desire  and  intent  to  do  so,  not  only-  by  refraining  from  any 
act  of  affirmance,  but  by  performing  some  positive  act  of  disaffirmance,  which 
is  of  such,  cha-racter  as  to  clearly  show  his  intention  not  to  be  bound  by  his 
contract.  Casement  v.  Callaghan,  35  N.  D.  27,  159  N.  W.  77.  There  must  be, 
riot  only  act  of  repudiation,  but  intent  to  repudiate.  Strain  v.  Hinds,  277  111. 
598,  115  N.  E.  563.  Where  a  minor  20  years  old  executed  a  note  and  mortgage 
payable  in  one  year,  and  a  year  after  majority  refused  to  sign  the  note  again, 
it  did  not  constitute  a  disaffirmance  of  the  note  and  mortgage.  Brown  v. 
Staab,  103  Kan.  611,  176  Pac.  113. 

&i  Tucker  v.  Moreland,  10  Pet.  58,  9  L.  Ed.  345;  Mustard  v.  Wohlford's 
Heirs,  15  Grat  (Va.)  329,  76  Am.  Dec.  209 ;  Phillips  v.  Hoskins,  128  Ky.  371, 


506  INFANTS  (Ch.  14 

a  suit  for  personal  injuries  is  a  sufficient  disaffirmance  of  a  pre- 
viously executed  release  of  his  right  to  sue  for  such  Injuries.52 
So  an  infant,  by  suing  for  his  wages  on  a  quantum  meruit,  repudi- 
ates his  contract  for  the  services,33  and  an  action  to  set  aside  an 

108  S.  W.  283,  33  Ky.  Law  Rep.  378;  Vallandingham  v.  Johnson,  85  Ky.  288, 
3  S.  W.  173 ;  Corbett  v.  Spencer,  63  Mich.  731,  30  N.  W.  385 ;  HAYNES  v.  BEN- 
NETT, 53  Mich.  15,  18  N.  W.  539,  Cooley  Cas.  Persons  and  Domestic  Relations, 
276 ;  Dawson  v.  Helmes,  30  Minn.  107,  14  N.  W.  462 ;  Chapin  v.  Shafer,  49  N. 
Y.  407;  Phillips  v.  Hoskins,  128  Ky.  371,  108  S.  W.  283;  Peterson  v.  Laik,  24 
Mo.  541,  69  Am.  Dec.  441;  Creslnger  v.  Welch's  Lessee,  15  Ohio,  156,  45  Am. 
Dec.  565;  Pitcher  v.  Laycock,  7  Ind.  398;  McGan  v.  Marshall,  7  Humph. 
(Tenn.)  121;  Den  ex  dem  Hoyle  v.  Stowe,  19  N.  C.  323;  Jackson  ex  dem  Wal- 
lace v.  Carpenter,  11  Johns.  (N.  Y.)  539 ;  Buchanan  v.  Hubbard,  119  Ind.  187, 
21  N.  E.  538.  In  some  jurisdictions  a  person  is  not  allowed  to  convey  land 
which  is  in  the  adverse  possession  of  another.  Here,  therefore,  an  infant  can- 
not avoid  his  deed  of  land  by  a  second  deed,  executed  while  nis  first  grantee 
or  another  is  in  the  adverse  possession  of  the  land.  He  must  first  make  an  en- 
try. Harrison  v.  Adcock,  8  Ga.  68.  See  Bool  v.  Mix,  17  Wend.  (N.  Y.)  133,  31 
Am.  Dec.  285.  But  see  Cresinger  v.  Welch's  Lessee,  supra.  Where  an  infant 
mortgages  land,  and,  after  obtaining  his  majority,  conveys  the  land  by  war- 
ranty deed,  without  excepting  the  mortgage,  the  deed  is  a  disaffirmance  of 
the  mortgage.  Dixon  v.  Merritt,  21  Minn.  196;  Allen  v.  Poole,  54  Miss.  323. 
When  the  deed  executed  after  the  infant  is  of  age  is  of  such  a  nature  that  it 
is  not  inconsistent  with  the  prior  conveyance,  there  is  no  disaffirmance.  Leit- 
ensdorfer  v.  Hempstead,  18  Mo.  269;  McGan  v.  Marshall,  supra ;  Eagle  Fire 
Ins.  Co.  v.  Lent,  6  Paige  (N.  Y.)  635.  Thus,  a  quitclaim  deed  has  been  held  not 
to  amount  to  a  disaffirmance  of  a  prior,  mortgage.  Shreeves  v.  Caldwell,  135 
Mich.  323,  97  N.  W.  764,  106  Am.  St.  Rep.  396,  3  Ann.  Cas.  592 ;  Singer  Mfg. 
Co.  v.  Lamb,  81  Mo.  221.  And  see  Palmer  v.  Miller,  25  Barb.  (N.  Y.)  399.  But 
see  Bagley  v.  Fletcher,  44  Ark.  153,  where  a  quitclaim  deed  was  held  a  dis- 
affirmance of  a  prior  deed.  And  to  the  same  effect  is  Beauchamp  v.  Bertig,  90 
Ark.  351,  119  S.  W.  75,  23  L.  R.  A.  (N.  S.)  659.  Mortgages  ratified  or  executed 
after  one  became  of  age  are  superior  to  a  deed  made  during  his  minority,  but 
not  ratified  until  after  ratification  or  execution  of  such  mortgages.  Tolor  v. 
Marion  County  Lumber  Co.,  93  S.  E.  274,  75  S.  E.  545,  Ann.  Cas.  1914D,  844. 
At  one  time  disaffirmance  of  a  deed  of  land  was  required  to  be  by  some  act 
of  as  high  and  solemn  nature  as  the  deed,  and  the  doctrine  has  been  recog- 
nized by  the  Supreme  Court  of  the  United  States,  and  by  some  of  the  state 
courts.  Pars.  Cont.  323 ;  Irvine  v.  Irvine,  9  Wall.  617,  19  L.  Ed.  800 ;  Tucker 
v.  Moreland,  10  Pet.  58,  9  L.  Ed.  345.  By  the  weight  of  authority,  this  sol- 
emnity is  no  longer  to  be  regarded  as  necessary;  but  it  is  held  that  a  deed 
may  be  effectually  avoided  or  disaffirmed  by  any  acts  or  declarations  disclos- 
ing an  unequivocal  intent  to  repudiate  it.  HAYNES  v.  BENNETT,  53  Mich.  15, 
18  N.  W.  539,  Cooley  Cas.  Persons  and  Domestic  Relations,  276  (collecting  the 
cases);  Singer  Mfg.  Co.  v.  Lamb,  supra;  Tunisou  v.  Chamblin,  88  111.  378.  Re- 
entry with  notice  of  intention  to  disaffirm,  and  also  a  written  notice  of  dis- 
amrmance,  have  been  held  sufficient.  Green  v.  Green,  69  N.  Y.  553,  25  Am. 
Rep.  233;  Scranton  v.  Stewart,  52  Ind.  68. 

02  Arizona  Eastern  R.  Co.  v.  Carillo,  17  Ariz.  115,  149  Pac.  313. 

es  Fisher  v.  Kissinger,  27  Ohio  Cir.  Ct.  R.  13. 


§  213)  CONTRACTS  OF  INFANTS  507 

oil  and  gas  lease  and  certain  deeds  is  a  disaffirmance.54  An  action 
by  a  person  after  becoming  of  age  to  recover  land  or  goods  sold 
by  him  during  his  minority  is  a  disaffirmance  of  the  sale,55  and  a 
contract  is  disaffirmed  by  merely  pleading  infancy  when  suit  is 
brought  to  enforce  it. 

SAME— EXTENT  OF  RATIFICATION  OR  DIS- 
AFFIRMANCE 

213.  The  ratification  or  disaffirmance  must  be  in  toto.     The  con- 
tract cannot  be  ratified  or  disaffirmed  in  part  only. 

The  disaffirmance  or  ratification  must  go  to  the  whole  contract. 
An  infant  cannot  ratify  a  part  which  he  deems  for  his  benefit,  and 
repudiate  the  rest.56  He  cannot,  for  instance,  ratify  a  lease  to  him- 
self, and  avoid  a  covenant  in  it  to  pay  rent ;  nor  can  he  hold  lands 
conveyed  to  him  in  exchange,  and  avoid  the  transfer  of  those  with 
which  he  parted ; 57  nor  can  he  hold  land  conveyed  to  him,  and  re- 
pudiate a  mortgage  given  at  the  time  as  part  of  the  same  transac- 
tion to  secure  the  purchase  money.58  So,  too,  an  infant  cannot  sue 

B*  Ryan  v.  Morrison,  40  Okl.  49,  135  Pac.  1049. 

66  Clark  v.  Tate,  7  Mont.  171,  14  Pac.  761 ;  CRAIG  v.  VAN  BEBBER,  100 
Mo.  584,  13  S.  W.  906,  18  Am.  St.  Rep.  569,  Cooley  Cas.  Persons  and  Domestic 
Relations,  278;  Parrish  v.  Treadway,  267  Mo.  91,  183  S.  W.  580;  Slater  v. 
Rudderforth,  25  App.  D.  C.  497  (holding  that  a  suit  for  cancellation  of  the 
conveyance  is  a  sufficient  disaffirmance)  ;  Philips  v.  Green,  3  A.  K.  Marsh. 
(Ky.)  7,  13  Am.  Dec.  124;  Stotts  v.  Leonhard,  40  Mo.  App.  336;  Scott  v. 
Buchanan,  11  Humph.  (Tenn.)  469;  Hughes  v.  Watson,  10  Ohio,  134.  It  is 
not  necessary  to  go  into  equity,  but  he  may  bring  ejectment.  Conn  v.  Bout- 
well,  101  Miss.  353,  58  South.  105.  Where,  however,  the  action  is  based  on  the 
assumption  that  defendant  is  wrongfully  in  possession,  as  in  the  case  of  eject- 
ment, the  weight  of  authority  seems  to  require  that  there  shall  have  been  some 
previous  act  of  disaffirmance  on  the  part  of  the  infant,  for  until  disaffirmance 
the  defendant  is  rightfully  in  possession.  See  Law  v.  Long,  41  Ind.  586 ; 
McClanahan  v.  Williams,  136  Ind.  30,  35  N.  E.  897;  Bool  v.  Mix,  17  Wend. 
(N.  Y.)  135,  31  Am.  Dec.  285;  Tomczek  v.  Wieser,  58  Misc.  Rep.  46,  108  N. 
Y.  Supp.  784;  Clawson  v.  Doe,  5  Blackf.  (Ind.)  300;  Wallace's  Lessee  v. 
Lewis,  4  Har.  (Del.)  75. 

36  Badger  v.  Phinney,  15  Mass.  359,  8  Am.  Dec.  105;  Pecararo  v.  Pecararo 
(Sup.)  84  N.  Y.  Supp.  581;  Bigelow  v.  Kinney,  3  Vt.  353,  21  Am.  Dec.  589; 
Lowry  v.  Drake's  Heirs,  1  Dana  (Ky.)  46. 

07  Buchanan  v.  Hubbard,  119  Ind.  187,  21  N.  E.  538. 

68  Hubbard  v.  Cummings,  1  Greenl.  (Me.)  11;  Uecker  v.  Koehn,  21  Neb.  559, 
32  N.  W.  583,  59  Am.  Rep.  849;  Bigelow  v.  Kinney,  3  Vt.  353,  21  Am.  Dec. 
589;  Heath  v.  West,  28  N.  H.  108;  Young  v.  McKee,  13  Mich.  556;  Skinner 


508  INFANTS  (Ch.  14 

for  damages  or  statutory  penalties  for  the  negligent  transmission 
of  a  telegraph  message,  without  complying  with  a  stipulation  of 
the  contract  as  to  the  time  when  claims  must  be  presented.08 


SAME—  RETURN  OF  CONSIDERATION 

214.  An  infant  may  disaffirm  his  executory  contract  without  first 

returning  the  consideration  received  by  him;  but,  after 
disaffirmance,  he  must  return  the*  consideration,  if  he 
has  it. 

215.  As  a  rule,  if  the  contract  has  been  executed  by  him,  he  can- 

not avoid  it,  and  recover  what  he  has  paid,  or  for  what  he 
has  done,  without  returning  the  consideration,  if  he  has  it. 
But  it  is  otherwise,  by  the  weight  of  authority,  if  he  has 
squandered  or  otherwise  disposed  of  the  consideration 
during  his  minority.  However  — 

EXCEPTIONS—  (a)  Though  he  has  the  consideration,  he  may 
effectually  disaffirm  his  executed  contract,  without  first 
returning  it,  if  he  does  not  seek  relief  from  the  courts,  as, 
for  instance,  where  he  disaffirms  his  conveyance  of  land 
by  conveying  to  another. 

(b)  Some  courts  hold  that  an  infant  cannot  recover  what  he  has 
paid,  or  for  what  he  has  done,  under  a  contract  by  which  he 
has  received  a  substantial  benefit,  unless  he  can  and  does 
place  the  other  party  in  statu  quo.  This  probably  does 
not  apply  to  his  conveyances  of  land. 

Since  a  person  cannot  disaffirm  in  part  only  a  contract  made  by 
him  during  infancy,  but  must  disaffirm  in  toto,  if  at  all,  it  is  a  gen- 
eral rule  that,  on  disaffirming  a  contract,  the  party  must  return 
the  consideration  which  he  has  received.60  Whether  or  not  he 

v.  Maxwell,  66  N.  C.  45;  Cogley  v.  Cushman,  16  Minn.  402  /Gil.  351  ">  ;  Callis 
v.  Day,  38  Wis.  643. 

e»  Western  Union  Telegraph  Co.  v.  Greer,  115  Tenn.  368,  89  S.  W.  327,  1 
L.  jj.  A.  (N.  S.)  525. 

eo  Badger  v.  Phinpey,  15  Mass.  359,  8  Am.  Dec.  105;  Bigelow  v.  Kinney, 
3  Vt.  353,  21  Am.  Dec.  589;  Wilhelm  v.  Hardman,  13  Md.  140;  Mustard  v. 
Wohlford's  Heirs,  15  Grat  (Va.)  329,  76  Am.  Dec.  209;  Combs  v.  Hawes  (Cal.) 
8  Pac.  597  ;  Kitchen  v.  Lee,  11  Paige  (N.  Y.)  107,  42  Am.  Dec.  101  ;  Bartlett 
v.  Cowles,  15  Gray  (Mass.)  446.  Especially  is  this  true,  if  the  infant  has  been 
guilty  of  any  fraud  in  the  procuring  of  the  contract.  Ackerman  v.  Hawkins, 
45  Ind.  App.  483,  88  N.  E.  616;  International  Land  Co.  v.  Marshall,  22  Okl. 


CONTRACTS  OF  INFANTS  509" 

must  do  so  as  a  condition  precedent  to  disaffirmance,  or  whether 
the  other  party  must  be  left  to  his  action  to  recover  the  considera- 
tion after  disaffirmance,  and  whether  or  not  the  consideration  or 
an  equivalent  must  be  returned  where  it  has  been  wasted  or  other- 
wise disposed  of,  are  questions  upon  which  the  decisions  are  con- 
flicting. 

As  has  already  been  seen,  if  a  person  who,  during  his  minority, 
has  received  the  consideration  for  his  contract,  has  the  considera- 
tion in  kind  when  he  attains  his  majority,  and  afterwards  disposes 
of  it,  either  by  consuming  it  himself,  or  by  selling  it,  or  otherwise 
putting  it  beyond  his  control,  or  if  he  retains  it  for  an  unreasonable 
time  without  seeking  to  avoid  the  contract,  he  thereby  ratifies  the 
contract;  and  this  applies  whether  the  contract  is  executed  or  exec- 
utory on  his  part.61 

Where  the  contract  is  executory  on  the  part  of  the  infant,  and 
he  has  not  ratified  it  by  his  conduct,  it  cannot,  according  to  the 
weight  of  authority,  be  enforced  against  him,  even  though  he  has 
the  consideration  received  by  him  in  kind.  He  need  not  return  the 
consideration  as  a  condition  precedent  to  repudiating  the  contract, 
and  pleading  his  infancy  in  an  action  brought  against  him  to  en- 
force il62  When  he  repudiates  the  contract,  however,  he  no  longer 
has  any  right  to  the  consideration  he  has  received ;  and,  if  he  still 

693,  98  Pac.  951,  19  L.  R.  A.  (N.  S.)  1056.  And  see  Smith  v.  Cole,  148  Ky.  138, 
146  S.  W.  30. 

ei  Ante,  p.  497.  Of  course,  if  through  no  fault  on  his  part,  nor  conduct 
amounting  to  a  ratification,  consideration  which  is  possessed  in  kind  on  at- 
taining his  majority  subsequently  becomes  incapable  of  return,  he  will  oc- 
cupy the  same  position  as  if  this  state  of  things  existed  when  he  attained  his 
majority. 

«2  Craighead  v.  Wells,  21  Mo.  409;  Shipley  v.  Smith,  162  Ind.  526,  70  N.  E. 
803 ;  White  v.  Sikes,  129  Ga.  508,  59  S.  E.  228,  121  Am.  St.  Rep.  228 ;  Price  v. 
Furman.  27  Vt.  268,  65  Am.  Dec.  194;  Wallace  v.  Leroy,  57  W.  Va.  263,  50 
S.  E.  243,  100  Am.  St.  Rep.  777;  Oneonta  Grocery  Co.  v.  Preston  (Sup.)  167 
N.  Y.  Supp.  641 ;  International  Text-Book  Co.  v.  McKone,.  133  Wis.  200,  113 
N.  W.  438;  Johnson  v.  Insurance  Co.,  56  Minn.  365,  59  N.  W.  992,  26  L.  R. 
A.  187,  45  Am.  St.  Rep.  473;  Story  &  Clark  Piano  Co.  v.  Davy  (Ind.  App.) 
119  N.  E.  177.  A  minor  who  has  entered  into  a  contract  to  work  for  a  manu- 
facturing corporation  for  six  months,  and  not  to  leave  without  giving  two 
weeks'  notice,  is  not  liable  in  damages,  to  be  deducted  from  his  wages,  if  he 
leaves  without  giving  such  notice.  Derocher  v.  Continental  Mills,  58  Me. 
217,  4  Am.  Rep.  286.  An  infant  under  the  age  of  18  years  may  disaffirm  an 
insurance  contract  and  recover  the  premiums  paid,  without  restoring  or  offer- 
ing to  restore  the  consideration.  Flittner  v.  Equitable  Life  Assur.  Soc.,  30- 
Cal.  App.  209,  157  Pac.  630. 


510  INFANTS  (Ch.  14 

has  it,  the  other  party  may  maintain  an  action  to  recover  it.63  By 
the  weight  of  authority,  if  he  has  wasted  or  otherwise  disposed  of 
the  consideration  during  his  minority,  so  that  he  cannot  return  it 
in  kind,  he  cannot  be  held  liable  for  it.  The  other  party  is  reme- 
diless.64 It  must  be  borne  in  mind  in  this  connection  that  retain- 
ing the  consideration  may  amount  to  ratification. 

When  the  contract  is  executed  on  the  part  of  the  infant,  and  he 
has  the  consideration  received  by  him  in  kind,  it  is  the  almost  uni- 
versal rule  that  he  cannot  repudiate  the  contract,  and  recover  what 
he  has  parted  with,  or  for  what  he  has  done,  unless  he  returns,  or 
offers  to  return,  the  consideration.85  Some  cases  go  to  the  extent 

as  Badger  v.  Phinney,  15  Mass.  359,  8  Am.  Dec.  105 ;  Mustard  v.  Wohlford'.s 
Heirs,  15  Grat.  (Va.)  329,  76  Am.  Dec.  209.  Where  an  infant  purchased  prop- 
erty under  fraudulent  representations  that  he  was  of  age,  and  failed  to  pay 
for  it,  the  seller  could  recover  the  property  as  against  attaching  creditors  of 
the  infant.  Wray  v.  Wrightsman,  139  Mo.  App.  635,  124  S.  W.  38. 

«*  See  Brawner  v.  Franklin,  4  Gill  (Md.)  470;  Boody  v.  McKenney,  23  Me. 
517,  525. 

05  Price  v.  Furman,  27  Vt  268,  65  Am.  Dec.  194;  Blair  v.  Whittaker,  31 
Ind.  App.  664,  69  N.  E.  182 ;  In  re  Huntenberg  (D.  C.)  153  Fed.  768 ;  Zuck  v. 
Turner  Harness  &  Carriage  Co.,  106  Mo.  App.  566,  80  S.  W.  967 ;  Millsaps  v. 
Estes,  137  N.  C.  535,  50  S.  E.  227,  70  L.  R.  A.  170,  107  Am.  St.  Rep.  496 ;  Lem- 
inon  v.  Beeman,  45  Ohio  St.  505,  15  Jf.  E.  476;  Dickerson  v.  Gordon,  52  Huu, 
614,  5  N.  T.  Supp.  310 ;  HARVEY  v.  BRIGGS,  68  Miss.  60,  8  South.  274,  10  L. 
R.  A.  62,  Cooley  Cas.  Persons  and  Domestic  Relations,  270 ;  Chandler  v.  Sim- 
mons, 97  Mass.  508,  93  Am.  Dec.  117 ;  Carr  v.  Clough,  26  N.  H.  280,  59  Am. 
Dec.  345 ;  Robinson  v.  Weeks,  56  Me.  102 ;  Johnson  v.  Insurance  Co.,  56  Minn. 
365,  59  N.  W.  992,  26  L.  R.  A.  187,  45  Am.  St.  Rep.  473 ;  Towle  v.  Dresser,  73 
Me.  252 ;  WULLER  v.  CHUSE  GROCERY  CO.,  241  111.  398,  89  N.  E.  796,  28  L. 
R.  A.  (N.  S.)  128,  132  Am.  St.  Rep.  216,  16  Ann.  Cas.  522,  Cooley  Cas.  Persons 
and  Domestic  Relations,  262;  In  re  Huntenberg  (D.  C.)  153  Fed.  768;  Bell  v. 
Burkhalter,  176  Ala.  62,  57  South.  460:  Stanhope  v.  Shambow,  54  Mont.  360. 
170  Pac.  752;  Putnal  v.  Walker,  61  Fla.  720,  55  South.  844,  36  L.  R.  A.  (N. 
S.)  33 ;  Alfrey  v.  Colbert,  168  Fed.  231,  93  C.  C.  A.  517 ;  Webb  v.  Reagiu,  160 
Ala.  537,  49  South.  580;  Foy  v.  Salzauo,  152  App.  Div.  47,  13G  X.  Y.  Supp. 
699;  Hatton  v.  Bodan  Lumber  Co.,  57  Tex.  Civ.  App.  478,  123  S.  W.  163. 
Under  the  Oklahoma  statute  (Comp.  Laws  1909,  §  5037),  an  infant  may  dis- 
affirm a  conveyance  made  by  him  when  under  the  age  of  18  years  without 
returning  or  offering  to  return  the  consideration.  Rice  v.  Anderson,  39  Okl. 
279,  134  Pac.  1120.  But  he  is  not  obliged  to  return  consideration  when  he 
cannot  return  in  kind.  International  Text-Book  Co.  v.  Doran,  80  Conn.  307, 
68  Atl.  255.  To  the  same  effect,  see  Pennsylvania  Co.  v.  Purvis,  128  111.  App. 
367,  holding  that  the  acceptance  by  a  minor  of  a  railroad  pass  containing 
an  exemption  from  liability  for  negligence  does  not  operate  to  relieve  the 
company  from  liability  for  an  injury  resulting  to  such  minor  from  the  neg- 
ligence of  the  company.  An  actual  tender  is  not  required  as  a  condition 
precedent  when  it  is  known  in  advance  that  such  tender  will  be  refused,  but 
restoration  should  be  made  on  the  trial  as  a  condition  of  the  judgment  Starr 


V 

& 


214-215)  CONTRACTS  OF  INFANTS  511 


m.* 

CONTRAC 

of  saying  without  qualification  that  the  return  of  the  consideration 
in  such  a  case  is  not  a  condition  precedent  to  the  right  to  disaf- 
firm.66 This  is  so  where  the  disaffirmance  by  the  infant  is  by  deal- 
ing with  the  property  he  has  parted  with  as  his  own,  and  where  he 
is  not  seeking  the  aid  of  a  court  to  recover  it;  as  where,  having 
sold  land  and  received  the  purchase  money,  he  disaffirms  by  con- 
veying the  land  to  another.  The  latter  deed  is  effectual  though 
he  has  not  returned  the  consideration  for  his  prior  deed.67  But  an 
infant  cannot  maintain  an  action  to  recover  what  he  has  parted 
with,  or  for  what  he  has  done,  without  returning  the  consideration, 
if  he  has  it.68 

v.  Watkins,  78  Neb.  610,  111  N.  W.  363.  Where  an  infant  purchases  real 
estate,  and  disaffirms  the  contract  and  restores  the  property  on  reaching  his 
majority,  the  vendor  cannot  defeat  the  right  to  disaffirm  by  refusing  to  take 
back  the  property.  Evarts  v.  Taylor,  18  N.  M.  371,  137  Pac.  583,  50  L.  R. 
A.  (N.  S.)  1113.  Where  an  infant  borrows  money  secured  by  mortgage,  for 
the  purpose  of  discharging  a  prior  mortgage  on  his  land,  'he  cannot  disaffirm 
the  loan  contract  4>nd  mortgage  without  returning  the  money  thus  acquired. 
Berry  v.  Stigall,  253  Mo.  690,  162  S.  W.  126,  50  L.  R.  A.  (N.  S.)  489,  Ann. 
Cas.  1915C,  118.  The  rule  that  the  infant  is  required  to  return  the  consid- 
eration if  it  is  in  his  possession  is  not  applicable  to  a  suit  by  a  guardian  to 
recover  possession  of  personal  property  which  his  infant  ward  has  sold  and 
delivered.  Hughes  v.  Murphy,  5  Ga.  App.  328,  63  S.  E.  231. 

06  Born  v.  Chicago  City  R.  Co.,  159  111.  App.  585.  In  an  action  against  the 
administratrix  of  the  grantor  to  set  aside  the  deed  and  cancel  a  note  given 
for  the  price  of  the  land,  on  the  ground  that  plaintiff  was  a  minor  when  the 
deed  was  made  to  him,  a  tender  of  the  deed  to  the  persons  in  whom  the  title 
to  the  land  is  vested  is  unnecessary.  Forsee's  Adm'x  v.  Forsee,  144  Ky.  169, 
137  S.  W.  836.  When  an  infant  has  been  paid  in  money,  the  tender  or  repay- 
ment of  the  money  is  not  a  condition  precedent  to  the  right  to  rescind;  but 
it  should  be  allowed  towards  infant's  claim.  Heath  v.  Stevens,  48  N.  H.  251  ; 
Sparman  v.  Keim,  83  N.  Y.  245.  One  who  elects  to  disaffirm  an  executed  con- 
tract on  the  ground  that  he  was  an  infant  when  contract  was  made,  if  he 
is  in  position  to  return  the  consideration,  will  be  treated  in  equity  as  a  trustee 
for  the  other  party  and  required  to  restore  the  same,  not  as  a  condition 
precedent  to  disaffirmance,  but  on  the  ground  that  he  is  in  possession  of 
property  which  in  equity  and  good  conscience  he  will  not  be  permitted 
to  retain.  Gannon  v.  Manning,  42  App.  D.  C.  206. 

67  Chandler  v.  Simmons,  97  Mass.  508,  93  Am.  Dec.  117;  Tucker  v.  More- 
land,  10  Pet.  58,  73,  9  L.  Ed.  345  ;  Dawson  v.  Helmes,  30  Minn.  107,  14  N.  W. 
462;  Shaw  v.  Boyd,  5  Serg.  &  R,  (Pa.)  309,  9  Am.  Dec.  368;  McCarty  v. 
Woodstock  Iron  Co.,  92  Ala.  463,  8  South.  417,  12  L.  R.  A.  136. 

es  Jones  v.  Valentine's  School  of  Telegraphy,  122  Wis.  318,  99  N.  W.  1043. 
When  an  infant  seeks  the  aid  of  a  court  of  equity  to  relieve  him  from  lia- 
bility on  his  contract,  he  must  do  equity,  and  must  restore  what  he  received. 
Hillyer  v.  Bennett,  3  Edw.  Ch.  (N.  Y.)  222.  But  not  so,  if  he  has  disposed  of 
it  while  yet  a  minor.  Eureka  Co.  v.  Edwards,  71  Ala.  248,  46  Am.  Rep.  314. 
Where  one  seeks  to  rescind  an  exchange  of  lands  made  while  he  was  an  in- 


512  INFANTS  (Ch.  14 

According  to  the  weight  of  authority,  an  infant,  on  attaining 
his  majority,  may  disaffirm  his  contract,  whether  it  is  executory  or 
executed,  and  in  the  latter  case  may  recover  back  what  he  has 
parted  with,  or  for  what  he  has  done,  without  returning,  or  offering 
to  return  the  consideration  received  by  him,  if,  during  his  minority, 
he  has  squandered  or  otherwise  disposed  of  it,  so  that  he  cannot 
return  it.68  He  is  not  bound  to  return  an  equivalent.  Some  of 

fant,  he  must  quitclaim  the  land  received  in  exchange.     Coe  v.  Moon,  260 
111.  7G,  102  N.  E.  1074. 

69  Gibson  v.  Soper,  6  Gray  (Mass.)  282,  66  Am.  Dec.  414;  Southern  Cotton 
Oil  Co.  v.  Dukes,  121  Ga.  787,  49  S.  E.  788 ;  White  v.  Sikes,  129  Ga.  508,  59 
S.  E.  228,  121  Am.  St.  Rep.  228;  Braucht  v.  Graves-May  Co.,  92  Minn.  116, 
99  N.  W.  417 ;  BEICKLER  v.  GUENTHER,  121  Iowa,  419,  96  N.  W.  895,  Cool- 
ey Gas.  Persons  and  Domestic  Relations,  256 ;  Chandler  v.  Simmons,  97  Mass. 
508,  93  Am.  Dec.  117 ;  Morse  v.  Ely,  154  Mass.  458,  28  N.  E.  577,  26  Am.  St. 
Rep.  263 ;  Price  v.  Furman,  27  Vt.  268,  65  Am.  Dec.  194 ;  Boody  v.  McKenney, 
23  Me.  517 ;  Lemmon  v.  Beeman,  45  Ohio  St.  505,  15  N.  E.  476 ;  Reynolds  v.  Mc- 
Curry,  100  111.  356;  Mustard  v.  Wohlford's  Heirs,  15  Grat.  (Va.)  329,  76 
Am.  Dec.  209;  Putnal  v.  Walker,  61  Fla.  720,  55  South.  844,  36  L.  R.  A.  (N. 
S.)  33;  Alfrey  v.  Colbert,  168  Fed.  231.  93  C.  C.  A.  517;  Btauchamp  v.  Bertig, 
90  Ark.  351,  119  S.  W.  75,  23  L.  R.  A.  (N.  S.)  659;  WULLER  v.  CHUSE  GRO- 
CERY CO.,  241  111.  398,  89  N.  E.  796,  28  L.  R.  A.  (N.  S.)  128,  132  Am.  St.  Rep. 
216,  16  Ann.  Cas.  522,  Cooley  Cas.  Persons  and  Domestic  Relations,  262 ;  First 
Nat.  Bank  of  Titonka  v.  Casey,  158  Iowa,  349,  138  N.  W.  897 ;  Lake*  v.  Perry,  95 
Miss.  550,  49  South.  569;  Barr  v.  Packard  Motor  Car  Co.,  172  Mich.  299, 
137  N.  W.  697;  Gray  v.  Grimm,  157  Ky.  603,  163  S.  W.  762;  Blckle  v. 
Turner,  133  Ark.  536,  202  S.  W.  703 ;  Walsh  v.  Young,  110  Mass.  399 ;  Daw- 
son  v.  Helmes,  30  Minn.  107,  14  N.  W.  462 ;  Miller  v.  Smith,  26  Minn.  248,  2 
N.  W.  942,  37  Am.  Rep.  407;  Green  v.  Green,  69  N.  T.  553,  25  Am.  Rep. 
233 :  Mordecai  v.  Pearl,  63  Hun,  553,  18  N.  Y.  Supp.  543;  Petrie  v.  Willimas, 
68  Hun,  589,  23  N.  Y.  Supp.  237;  Brawner  v.  Franklin,  4  Gill  (Md.)  463; 
Brandon  v.  Brown,  106  111.  519 ;  CRAIG  v.  VAN  BEBBER,  100  Mo.  584,  13  S. 
W.  906,  18  Am.  St.  Rep.  569,  Cooley  Cas.  Persons  and  Domestic  Relations,  278 ; 
Lacy  v.  Pixler,  120  Mo.  383,  25  S.  W.  206;  Shirk  v.  Shultz,  113  Ind.  571,  15 
N.  is.  12 ;  HARVEY  v.  BRIGGS,  68  Miss.  60,  8  South.  274, 10  L.  R.  A.  62,  Cool- 
ey Cas.  Persons  and  Domestic  Relations,  270;  Englebert  v.  Troxell,  40  Neb. 
195,  58  N.  W.  852,  26  L.  R.  A.  177,  42  Am.  St.  Rep.  665;  Manning  v.  John- 
son, 26  Ala.  446,  62  Am.  Dec.  732.  It  was  said  in  Price  v.  Furman,  27  Vt. 
268,  65  Am.  Dec.  194:  "A  distinction  is  to  be  observed  between  the  case  of  an 
infant  in  possession  of  such  property  after  age,  and  when  he  has  lost,  sold, 
or  destroyed  the  property  during  his  minority.  In  the  former  case,  if  he  has 
put  the  property  out  of  his  power,  he  has  ratified  the  contract,  and  rendered 
it  obligatory  upon  him.  In  the  latter  case  the  property  is  to  be  restored  if  it 
be  in  his  possession  and  control.  If  the  property  is  not  in  his  hands,  nor 
under  his  control,  that  obligation  ceases.  To  say  that  an  infant  cannot  re- 
cover back  his  property  which  he  has  parted  with  under  such  circumstances, 
because,  by  his  indiscretion,  he  has  spent,  consumed,  or  injured  that  which 
he  received,  would  be  making  his  want  of  discretion  the  means  of  binding 
him  to  all  his  improvident  contracts,  and  deprive  him  of  that  protection  which 
the  law  designed  to  secure  to  him."  As  the  contract  of  an  infant  is  voidable 


§§  214-215)  CONTRACTS  OF  INFANTS  513 

the  courts  extend  this  rule  to  cases  in  which  the  infant  was  even 
benefited  by  disposing  of  the  consideration.70  The  principle  on 
which  this  rule  is  based  is  that  the  privilege  of  the  infant  to  avoid 
his  contracts  is  intended  to  protect  him  against  the  improvidence 
which  is  incident  to  his  immaturity,  and  that  to  require  him  to  re- 
turn the  consideration  received  and  squandered  or  otherwise  dis- 
posed of  during  his  minority  would  be  to  withdraw  this  protec- 
tion, and  frustrate  the  object  of  the  law.  This  rule  has  been  ap- 
plied, not  only  where  the  contract  was  a  sale  and  conveyance  of 
land  by  the  infant,  but  to  sales  of  personalty  and  other  contracts 
as  well. 

Many  courts,  on  the  other  hand,  applying  the  principle  that  the 
privilege  of  an  infant  is  intended  as  a  shield,  and  not  as  a  sword — 
or,  in  other  words,  as  a  protection  to  the  infant,  and  not  as  an  in- 
strument of  fraud  and  injustice  to  others — hold  that  an  infant  can- 
not avoid  his  executed  contracts,  whereby  he  has  benefited,  and 
recover  what  he  has  parted  with,  or  for  what  he  has  done,  unless 
he  can  and  does  restore  the  consideration  he  has  received ;  and  that 
it  is  immaterial  that  the  consideration  has  been  disposed  of  by  him. 
or  for  any  other  reason  cannot  be  returned.  In  other  words,  they 
hold  that  an  infant  who  receives  a  substantial  consideration  for  his 
executed  contract  cannot,  on  attaining  his  majority,  avoid  the  con- 

and  not  void,  if  money  paid  to  an  infant  on  a  contract  is  consumed  or  wast- 
ed, he  may  recover  full  amount  due  under  contract  on  attaining  majority, 
but  if  money  is  used  for  his  benefit  and  he  has  the  property  in  which  it  was 
invested,  he  cannot  retain  property  without  allowing  credit.  Chandler  v. 
Jones,  172  N.  C.  569.  90  S.  E.  580.  An  infant  may  disaffirm  a  release  of  a 
claim  for  personal  injury  without  returning  the  consideration  expended  by 
him.  Britton  v.  South  Penn  Oil  Co.,  73  W.  Va.  792,  81  S.  E.  525.  He  need  not 
return  consideration  paid  to  a  parent  who  joined  in  the  settlement.  Turney 
v.  Mobile  &  O.  B.  Co.,  127  Tenn.  673,  156  S.  W.  1085.  The  consideration  may 
be  considered  in  mitigation  of  damages.  Born  v.  Chicago  City  R.  Co.,  159  111. 
App.  585.  Where  plaintiff,  upon  becoming  of  age,  was  paid  his  share  of 
money  in  settlement  of  litigation,  he  must,  in  order  to  maintain  an  action  to 
set  aside  the  settlement  for  fraud,  repudiate  the  settlement  and  repay  the 
money  received.  Lefler  v.  Oelrichs,  173  App.  Div.  759,  160  N.  Y.  Supp.  119. 

70  It  has  been  held  in  a  late  Massachusetts  case  that  a  minor  who  contracts 
with  his  employer  that  the  price  of  articles,  not  necessaries,  purchased  by 
him  from  his  employer,  shall  be  deducted  from  his  wages,  may,  on  becoming 
of  age,  repudiate  his  contract,  and  recover  his  wages  without  deduction ;  and 
this,  even  though  he  may  have  disposed  of  the  articles  to  his  benefit.  Morse 
v.  Ely,  154  Mass.  458,  28  N.  E.  577,  26  Am.  St.  Rep.  263.  And  see  Genereux 
v.  Sibley,  18  R.  I.  43,  25  Atl.  345. 

TIFF.P.&  D.REL.(3o  ED.)— 33 


514  INFANTS  (Ch.  14 

tract,  and  recover  what  he  has  parted  with,  unless  he  can  and  does 
place  the  other  party  in  statu  quo.71 


SAME— EFFECT  OF  RATIFICATION  OR  DIS- 
AFFIRMANCE 

216.  Ratification  renders  the  contract  absolutely  binding  ab  initio. 

217.  DisafBrmance  renders  the  contract  absolutely  void  ab  initio. 

Third  parties,  therefore,  can  acquire  no  rights  under  an 
avoided  contract. 

The  effect  of  ratification  is  to  render  the  contract  binding  ab  ini- 
tio.72 The  new  promise  is  not  a  new  contract,  but  simply  a  ratifi- 

7i  Holmes  v.  Blogg,  8  Taunt.  508  (but  see  Corpe  v.  Over  ton,  10  Bing.  252)  ; 
Ex  parte  Taylor,  8  De  Gex,  M.  &  G.  254;  Valentin!  v.  Canali,  24  Q.  B.  Div. 
166 ;  Adams  v.  Beall,  67  Md.  53,  8  Atl.  664, 1  Am.  St.  Rep.  379 ;  Succession  of 
Sallier,  115  La.  97,  38  South.  929;  Breed  v.  Judd,  1  Gray  (Mass.)  455;  Wil- 
helm  v.  Hardman,  13  Md.  140 ;  Holden  v.  Pike,  14  Vt.  405,  39  Am.  Dec.  228 ; 
Heath  v.  Stevens,  48  N.  H.  251 ;  Womack  v.  Womack,  8  Tex.  397,  417,  58  Am. 
Dec.  119;  Bailey  v.  Barnberger,  11  B.  Mon.  (Ky.)  113;  Locke  v.  Smith,  41 
N.  H.  346 ;  Lown  v.  Spoon,  158  App.  Div.  900,  143  N.  Y.  Supp.  275 ;  Johnson 
v.  Insurance  Co.,  56  Minn.  365,  59  N.  W.  992,  26  L.  R.  A.  187,  45  Am.  St. 
Rep.  473.  In  Johnson  v.  Insurance  Co.,  supra,  the  court  says:  "But  if  the 
contract  was  free  from  any  fraud  or  bad  faith,  and  otherwise  reasonable, 
excepting  that  the  price  paid  by  the  infant  was  in  excess  of  the  vajue  of 
what  he  received,  his  recovery  should  be  limited  to  the  difference  between  what 
he  paid  and  what  he  received."  See,  also,  Medbury  v.  Watrous,  7  Hill  (N.  Y.) 
110,  115;  Petrie  v.  Williams,  68  Hun,  589,  23  N.  Y.  Supp.  237.  When  the 
benefits  received  by  the  infant  are  of  such  nature  that  he  cannot  restore  them, 
he  may  rescind  and  recover  what  he  parted  with,  unless  it  appears  that  the 
contract  was  a  fair,  reasonable,  and  provident  one,  free  from  fraud  or  over- 
reaching on  the  part  of  the  other  party.  Braucht  v.  Graves-May  Co.,  92  Minn. 
116,  99  N.  W.  417.  And  see  Bergluiid  v.  American  Multigraph  Sales  Co.,  135 
Minn.  67,  160  N.  W.  191 ;  Link  v.  New  York  Life  Ins.  Co.,  107  Minn.  33,  119 
N.  W.  488;  Klaus  v.  A.  C.  Thompson  Auto  &  Buggy  Co.,  131  Minn.  10,  154 
N.  W.  508.  A  minor,  who  receives  no  benefit  from  the  leased  premises,  may 
recover  from  the  lessor  any  money  which  he  has  paid  as  rent.  Ex  parte 
McFerren,  184  Ala.  223,  63  South.  159,  47  L.  R,  A.  (N.  S.)  543,  Ann.  Cas. 
1915B,  672,  reversing  Edgewood  Highland  Land  Co.  v.  McFerren,  9  Ala.  App. 
275,  (53  South.  157.  A  minor,  who  has  received  practically  no  benefit  under 
his  contract  of  registration  in  college,  is  entitled,  on  disaffirmance,  to  a  re- 
turn of  the  tuition  fee  paid  by  him.  Kamil  v.  New  York  College  of  Dentistry 
(Sup.)  168  N.  Y.  Supp.  527.  Where  the  net  results  of  purchases  and  sales  of 
property  for  an  infant  by  agents  appointed  for  that  purpose  are  less  than  his 
first  advancement  to  them,  he  was  not  benefited  thereby,  within  the  rule  that 
an  executed  contract  beneficial  to  an  infant  cannot  be  rescinded  by  him,  un- 
less he  returns  the  consideration.  Benson  v.  Tucker,  212  Mass.  60,  98  N.  E. 
5S9,  41  L.  R.  A.  (N.  S.)  1219. 

"  Ward  v.  Anderson,  111  N.  C.  115,  15  S.  E.  933;    McCune  y.  Goodwillie, 


§§  216-217)  CONTRACTS  OF   INFANTS  515 

cation  of  the  original  contract;  and  a  suit,  if  brought,  must  be  on 
the  original  contract,  and  not  on  the  new  promise.  The  ratifica- 
tion renders  the  contract  absolutely  binding.73  It  cannot  be  re- 
tracted, and  the  contract  disaffirmed.74 

A  voidable  contract,  if  executed  by  the  infant,  vests  the  other 
party  with  an  interest  subject  to  be  defeated  by  the  infant's  elec- 
tion to  rescind.  A  sale  and  conveyance  of  land,  for  instance,  or  a 
sale  and  delivery  of  chattels,  vest  the  purchaser  with  a  defeasible 
title,  subject  to  being  defeated  or  confirmed  by  the  infant.  The 
purchaser  may  therefore  deal  with  the  property,  until  disarfirmance, 
by  sale  or  otherwise,  and  it  is  important  to  ascertain  the  effect  which 
a  disarfirmance  will  have.  It  is  well  settled  that  disarfirmance 
of  a  contract  relates  back  to  the  date  of  the  contract,  and  renders 
it  void  on  both  sides  ab  initio;75  and  it  follows  that  the  rights  of 
the  parties  must  be  determined  just  as  if  there  never  had  been 

204  Mo.  306,  102  S.  W.  997 ;  Palmer  v.  Miller,  25  Barb.  (N.  T.)  399 ;  Minock 
v.  Shortridge,  21  Mich.  316;  Hall  v.  Jones,  21  Md.  439.  But  where  an  in- 
fant gave  a  deed,  and,  after  majority,  ratified  it,  and  gave  a  second  deed  to 
one  not  having  notice  of  the  ratification,  the  second  vendee  was  held  to  have 
good  title.  "While  it  is  true  that  the  title,  after  ratification,  is  held,  for 
most  purposes,  to  relate  back  to  the  original  deed,  yet  it  is  the  ratification 
which  is  the  effective  act,  and  which  rescues  the  deed  from  its  liability,  at 
any  moment,  to  be  made  a  nullity.  We  have  no  doubt  that,  if  the  ratification 
is  by  means  of  a  written  instrument,  it  is  within  the  policy  of  the  registry 
laws.  It  is  the  object  of  those  laws  to  disclose  to  all  the  world  the  exact 
condition  of  a  title,  and  written  instruments  relating  to  land  not  appearing 
there  are  to  be  taken  as  not  existing,  unless  the  knowledge  of  them  is 
brought  home  in  some  other  way.  If  the  ratification  is  by  acts  in  pais,  then  a 
subsequent  purchaser  must  be  affected  with  notice  of  those  acts."  Black 
v.  Hills,  36  111.  376,  87  Am.  Dec.  224. 

78  Tillery  v.  Land,  136  N.  C.  537,  48  S.  E.  824,  holding  that  specific  perform- 
ance of  a  contract  to  sell  real  estate  may  be  entorced  after  ratification.  The 
ratification  after  majority  of  a  deed  made  during  infancy  is  as  effective  as 
if  the  grantor  had  then  made  a  new  deed.  Ward  v.  Ward,  143  Ky.  91,  136  S. 
W.  137. 

74  Hastings  v.  Dollarhide,  24  Cal.  195 ;    Luce  v.  Jestrab,  12  N.  D.  548,  97 
N.  W.  848 ;   North  American  Coal  &  Coke  Co.  v.  O'Neal,  82  W.  Va.  186,  95  S. 
E.  822.    See  Houlton  v.  Manteuffel,  51  Minn.  185,  53  N.  W.  541. 

75  Rice  v.  Boyer,  108  Ind.  472,  9  N.  E.  420,  58  'Am.  Rep.  53;    Mustard  v. 
Wohlford's  Heirs,  15  Grat.  (Va.)  329,  76  Am.  Dec.  209 ;   French  v.  McAndrew, 
61  Miss.  187 ;   Boyden  v.  Boyden,  9  Mete.  (Mass.)  519 ;   Badger  v.  Phinney,  15 
Mass.  359,  8  Am.  Dec.  105 ;    Hoyt  v.  Wilkinson,  57  Vt.  4fl4 ;   Mette  v.  Feltgen 
(111.)  27  N.  E.  911;   Id.,  148  111.  357,  36  .N.  E.  81;   Yanc#  v.  Boyce,  28  N.  D. 
187,  148  N.  W.  539,  Ann.  Cas.  1916E,  258 ;   Grissom  v.  Beidleman,  35  Okl.  343, 
129  Pac.  853,  44  L.  R.  A.  (N.  S.)  411,  Ann.  Cas.  1914D,  599;   Derocher  v.  Con- 
tinental Mills,  58  Me.  217,  4  Am.  Rep.  286;    Plummer  v.  Northern  Pac.  Ry. 
Co.,  98  Wash.  67,  167  Pac.  73;    Oneida  County  Sav.  Bank  v.  Saunders,  179 


516  INFANTS  (Ch.  14 

any  contract  between  them.79  One,  therefore,  who  has  occupied 
land  under  a  conveyance  by  an  infant,  which  is  avoided  by  him 
on  attaining  his  majority,  is  liable  for  use  and  occupation  during 
the  time  of  his  occupation,  just  as  he  would  be  if  there  had  been  no 
conveyance.77  If  the  infant's  vendee  has  sold  the  land  to  some 
third  person,  the  latter  occupies  no  better  position  than  the  vendee, 
and  the  property  may  be  recovered  from  him,  even  though  he  was 
a  purchaser  for  value,  and  without  notice  of  the  defeasible  nature 
of  the  title.78 

Since  an  infant  has  this  absolute  right  to  avoid  his  conveyances, 
the  disaffirmance  will  inure  to  the  benefit  of  any  person  who  may 
stand  in  the  infant's  shoes  by  virtue  of  a  subsequent  conveyance  of 
the  land.  Thus,  where  a  person,  who  has  conveyed  his  land  during 
his  minority,  executes  a  conveyance  to  another  person  on  attaining 
his  majority,  the  first  grantee  cannot  escape  the  effect  of  this  dis- 
affirmance by  showing  that  the  second  grantee  knew  of  the  first 
conveyance  when  he  took  his.  As  was  said  by  the  Illinois  court: 
"It  can  in  no  just  sense  be  said  that  the  grantee  of  a  person  who 
had  conveyed  during  his  infancy  is  not  to  be  deemed  an  innocent 

App.  Div.  282,  166  N.  Y.  Supp.  280;  Vent  v.  Osgood,  19  Pick.  (Mass.)  572; 
Lufkin  v.  Mayall,  25  N.  H.  82. 

7«  Smoot  v.  Ryan,  187  Ala.  396,  65  South.  828;  Yancey  v.  Boyce,  28  N.  D. 
187,  148  N.  W.  539,  Ann.  Cas.  1916E,  258.  It  has  been  held  in  some  cases 
that,  on  disaffirmance  of  a  contract  for  the  purchase  of  personal  property,  the 
infant  must  account  for  the  use  and  deterioration  of  the  property.  Rice  v. 
Butler,  160  N.  Y.  578,  55  N.  E.  275,  47  L.  R.  A.  303,  73  Am.  St.  Rep.  703; 
Wooldridge  v.  La  Voie  (N.  H.)  104  Atl.  346.  In  the  latter  case,  where  the 
infant  rescinded  a  purchase  of  an  automobile,  it  was  held  that  he  was  charge- 
able with  the  value  of  the  benefits  received,  including  the  pleasure  derived 
in  driving  the  car,  and  for  any  damage  to  the  car  caused  by  his  tortious 
acts,  but  not  for  damage  due  to  unskillfulness  or  mere  negligence.  The  right 
to  recover  for  the  use  of  the  machine  on  rescission  of  a  purchase  of  a  multi- 
graph  was  recognized  in  Berglund  v.  American  Multigraph  Sales  Co.,  135 
Minn.  67,  160  N.  W.  191,  and  Wanisch  v.  Wuertz,  79  Misc.  Rep.  610,  140  N. 
Y.  Supp.  573.  On  the  other  hand  the  right  to  hold  the  infant  for  use  and 
deterioration  is  denied  in  Gillis  v.  Goodwin,  180  Mass.  140,  61  N.  E.  813,  91 
Am.  St.  Rep.  265;  Hauser  v.  Marnon  Chicago  Co.,  208  111.  App.  171;  Story 
&  Clark  Piano  Co.  v.  Davy  (Ind.  App.)  119  N.  E.  177. 

77  French  v.  McAndrew,  61  Miss.  187.  But  he  is  entitled  to  set  off  value 
of  Improvements  placed  on  the  property.  Coe  v.  Moon,  260  HI.  76,  102  N.  E. 
1074.  To  the  same^ffect,  see  Tobin  v.  Spann,  85  Ark.  556,  109  S.  W.  534,  16 
L.  R.  A.  (N.  S.)'672. 

7  s  Hill  v.  Anderson.  5  Smedes  &  M.  (Miss.)  216;  Mustard  v.  Wohlford's 
Heirs,  15  Grat.  (Va.)  329,  76  Am.  Dec.  209 ;  Searcy  v.  Hunter,  81  Tex.  644,  17 
S.  W.  372,  26  Am.  St.  Rep.  837;  Downing  v.  Stone,  47  Mo.  App.  144;  Miles 
v.  Lingerman,  24  Ind.  385. 


§§  216-217)  CONTRACTS  OF  INFANTS  517 

purchaser,  if  he  has  notice  of  the  first  deed.  He  has  as  perfect  a 
legal  right  to  purchase  land  which  his  grantor  had  sold  during 
minority  as  he  would  have  to  purchase  land  that  had  never  been 
conveyed  at  all.  The  moment  the  second  deed  is  made,  the  deed 
made  in  infancy  is  disaffirmed,  and  becomes  void.  It  is  as  if  it  had 
never  been.  This  right  of  disaffirmance  is  necessarily  given  by  the 
law  to  prevent  great  frauds.  Yet  the  nVht  would  be  practically  of 
little  value  to  the  minor  if  the  person  buying  of  him  after  he  be- 
comes of  age  is  to  be  considered  as  incurring,  in  any  way,  the  cen- 
sure of  the  law,  and  to  be  therefore  denied  the  position  of  an  inno- 
cent purchaser."  79 

A  conveyance  by  an  infant  may  be  avoided,  not  only  as  against 
the  grantee,  but  also  as  against  creditors  of  the  grantee  80  and  bona 
fide  purchasers  for  value  from  him.81  In  like  manner,  personal 
property  disposed  of  by  an  infant  may  be  followed  into  the  hands 
of  bona  fide  purchasers.82  And  negotiable  instruments  executed  by 
an  infant  may  be  avoided  in  the  hands  of  bona  fide 'holders  for 
value.88 

Where  services  have  been  rendered  by  an  infant  under  a  void- 
able contract,  and  he  has  received  nothing  under  it,  he  may,  on 
disaffirming  the  contract,  recover  the  value  of  the  services  as  on  an 
implied  contract.84  And  in  such  a  case  he  may,  according  to  the 
better  opinion,  recover  without  any  deduction  for  damages  caused 
by  his  failure  to  carry  out  the  contract,  for  to  allow  such  a  de- 
duction would  be,  in  effect,  to  enforce  the  contract.85  So,  also,  if 

79  Black  v.  Hills,  36  111.  376,  87  Am.  Dec.  224. 

so  Seed  v.  Jennings,  47  Or.  464,  83  Pac.  872. 

si  Conn  v.  Boutwell,  101  Miss.  353,  58  South.  105;  Jackson  v.  Beard,  162 
N.  C.  105,  78  S.  E.  6. 

sa  Downing  v.  Stone,  47  Mo.  App.  144;  Hill  v.  Anderson,  5  Smedes  &  M. 
(Miss.)  216. 

ss  Seeley  v.  Seeley-Howe-Le  Van  Co.,  128  Iowa,  294,  103  N.  W.  961. 

8*Medbury  v.  Watrous,  7  Hill  (N.  Y.)  110;  Gaffney  v.  Hayden,  110  Mass. 
137,  14  Am.  Rep.  580;  Price  v.  Furman,  27  Vt.  268,  65  Am.  Dec.  194;  Whit- 
marsh  v.  Hall,  3  Denio  (N.  Y.)  375;  Vent  v.  Osgood,  19  Pick.  (Mass.)  572; 
Ray  v.  Haines,  52  111.  485;  Dallas  v.  Hollingsworth,  3  Ind.  537;  Judkins  v. 
Walker,  17  Me.  38,  35  Am.  Dec.  229;  Derocher  v.  Continental  Mills,  58  Me. 
217,  4  Am.  Rep.  286 ;  Lufkin  v.  Mayall,  25  N.  H.  82.  See  Clark,  Cent.  259. 

so  uerocher  v.  Continental  Mills,  58  Me.  217,  4  Am.  Rep.  286 ;  Whitmarsh 
y.  Hall,  3  Denio  (N.  Y.)  375.  But  see  Moses  v.  totevens,  2  Pick.  (Mass.)  332 ; 
Thomas  v.  Dike,  11  Vt.  273,  34  Am.  Dec.  690.  But  the  master  may  show 
any  facts  which  affect  the  value  of  the  infant's  services,  such  as  lack  of 
skill,  or  negligence  or  disobedience  of  orders,  or  injury  resulting  therefrom, 
Vehue  v.  Pinkham,  60  Me.  142;  and  will  be  credited  with  payments  made 


518  INFANTS  (Ch.  14 

an  infant  has  been  paid  money  or  parted  with  property  under  a 
voidable  contract,  and  has  himself  received  nothing,  he  may  re- 
cover what  he  has  parted  with  on  avoiding  the  contract.86  Even 
where  he  has  received  something  under  the  contract,  he  may  return 
it,  and  recover  what  he  has  parted  with ;  and,  as  has  been  seen,  ac- 
cording to  the  weight  of  authority,  he  may  so  recover  without  re- 
turning what  he  has  received,  if  he  has  lost,  wasted,  or  used  it  dur- 
ing his  minority,  so  that  he  cannot  return  it.  A  disaffirmance  can- 
not be  retracted.  A  ratification  after  a  disaffirmance  comes  too 
late  " 

REMOVAL  OF  DISABILITIES 

218.  The  emancipation  of  an  infant  by  act  of  the  parent  or  by  mar- 
riage, while  removing  some  of  the  disabilities  of  infancy, 
does  not  enlarge  the  capacity  to  contract.  In  some  states, 
however,  the  disabilities  of  infancy  may  be  removed  by 
judicial  proceedings. 

An  infant  may  be  emancipated  by  the  act  of  his  parent  or  by  mar- 
riage ; 88  and,  while  emancipation  will  to  some  extent  remove  the 
disabilities  of  infancy,89  it  does  not  enlarge  or  affect  his  capacity 
to  contract,80  or  his  capacity  to  sue  without  a  next  friend  or  guard- 
under  the  contract,  Hagerty  v.  Lock  Co.,  62  X.  H.  576;  or  with  the  value  of 
necessaries  furnished  the  infant.  Meredith  v.  Crawford,  34  Ind.  399. 

86  Stafford  v.  Roof,  9  Cow.  (N.  Y.)  626;  Corpe  v.  Overton,  10  Bing.  252; 
Millard  v.  Hewlett,  19  Wend.  (N.  Y.)  301 ;  Shurtleff  v.  Millard,  12  R.  I.  272, 

34  Am.  Rep.  640 ;   Ross  P.  Curtice  Co.  v.  Kent,  89  Neb.  496.  131  N.  W.  944,  52 
L.  R,  A.  (N.  S.)  723  (holding  that,  where  an  infant  disaffirms  a  conditional 
sale  contract,  the  title  to  the  property  remains  in  the  vendor,  and  the  infant 
may  recover  any  payments  made). 

ST  Edgerton  v.  Wolf,  6  Gray  (Mass.)  453;  McCarty  v.  Woodstock  Iron  Co., 
92  Ala.  463,  8  South.  417,  12  L.  R.  A.  136. 

«8  Ante,  p.  358. 

88  Inhabitants  of  Bucksport  v.  Inhabitants  of  Rockland,  56  Me.  22 ;  Person 
v.  Chase,  37  Vt.  647,  88  Am.  Dec.  630 ;  Inhabitants  of  Taunton  v.  Inhabitants 
of  Plymouth,  15  Mass.  203 ;  Trammell  v.  Trammell,  20  Tex.  406 ;  Grayson  v. 
Lofland,  21  Tex.  Civ.  App.  503,  52  S.  W.  121;  Lawder  v.  Larkin  (Tex.  Civ. 
App.)  94  S.  W.  171 ;  Robinson  v.  Hathaway,  150  Ind.  679,  50  N.  E.  883 ;  Ward 
v.  Laverty,  19  Neb.  429,  27  N.  W.  393;  Hoskins  v.  White,  13  Mont  70,  32 
Pac.  163.  And  see  Genereux  v.  Sibley,  18  R.  I.  43,  25  Atl.  345. 

8 o  Mason  v.  Wright,  13  Mete.  (Mass.)  306;  Inhabitants  of  Taunton  v.  In- 
habitants of  Plymouth,  15  Mass.  203 ;  Tyler  v.  Gallop's  Estate,  68  Mich.  185, 

35  N.  W.  902,  13  Am.  St.  Rep.  336;    Genereux  v.  Sibley,  18  R.  I.  43,  25  Atl. 
345;    Person  v.  Chase,  37  Vt.  647,  88  Am.  Dec.  630;    Hudson's  Guardian  v. 
Hudson,  160  Ky.  432,  169  S.  W.  S91 ;   Fields  v.  Mitchell,  112  Me.  368,  92  Atl. 


§  218)  REMOVAL  OP  DISABILITIES  519 

ian,91  or  give  him  political  rights  not  belonging  to  infants  gen- 
erally.92 Even  statutes  which  confer  on  married  women  the  pow- 
er to  contract  generally,  and  to  convey  their  separate  real  estate 
with  or  without  the  consent  of  their  husbands,  do  not  operate  to 
remove  the  disability  of  infancy,  but  only  that  of  coverture.98 

In  some  states,  however,  provision  is  made  by  statute  for  the  re- 
moval of  the  disabilities  of  infancy  by  judicial  proceedings ; 9*  the 
power  being  usually  vested  in  courts  of  chancery,96  or  of  pro- 
bate.96 On  a  proper  showing  of  the  infant's  ability  to  manage  his 
own  affairs,97  the  court  may  in  its  discretion  enter  an  order  or  de- 
cree emancipating  the  infant  and  removing  his  disabilities.98  The 
effect  of  the  order  or  decree  is  to  invest  the  infant  with  all  the 
powers  and  capacities,  and  to  subject  him  to  all  the  liabilities,  he 
would  have  or  be  subject  to  if  he  had  actually  attained  his  ma- 
jority.99 

293;  Hoskins  v.  White,  13  Mont.  70,  32  Pac.  163.  Except  as  to  necessaries, 
Chapman  v.  Hughes,  61  Miss.  339. 

»i  Hoskins  v.  White,  13  Mont.  70,  32  Pac.  163.  But  see  Ex  parte  Hollopeter, 
52  Wash.  41,  100  Pac.  159,  21  L.  It.  A.  (N.  S.)  847,  132  Am.  St.  Rep.  952,  17 
Ann.  Cas.  91.  And  see,  also,  Hays  v.  Bowdoin,  159  Ala.  600,  49  South.  122. 

92  Inhabitants  of  Taunton  v.  Inhabitants  of  Plymouth,  15  Mass.  203. 

93  Shipley  v.  Smith,  162  Ind.  526,  70  N.  E.  803 ;    Sims  v.  Gunter,  201  Ala. 
286,  78  South.  62;    Burr  v.  Wilson,  18  Tex.  367.     But  see  Ward  v.  Laverty, 
19  Neb.  429,  27  N.  W.  393. 

94  Boykin  v.  Collins,  140  Ala.  407,  37  South.  248;   Young  v.  Hiner,  72  Ark. 
299,  79  S.  W.  1062 ;   Doles  v.  Hilton,  48  Ark.  305,  3  S.  W.  193 ;    Marks  v.  Mc- 
Elroy,  67  Miss.  545,  7  South.  408 ;   Cunningham  v.  Robison,  104  Tex.  227,  136 
S.  W.  441.    Under  Kirby's  Dig.  §  1309,  a  court  cannot  remove  the  disabilities 
of  minors  under  14  years  of  age  to  enable  them  to  convey  an  interest  in  land. 
Dalton  v.  Bradley  Lumber  Co.,  135  Ark.  392,  205  S.  W.  695. 

95  Boykin  v.  Collins,  140  Ala.  407,  37  South.  248;    Young  v.  Hiner,  72  Ark. 
299,  79  S.  W.  1062 ;  Marks  v.  McElroy,  67  Miss.  545,  7  South.  408.    By  the  dis- 
trict court  in  Texas.    Buckley  v.  Herder  (Tex.  Civ.  App.)  133  S.  W.  703. 

»e  Doles  v.  Hilton,  48  Ark.  305,  3  S.  W.  193. 

»T  in  re  Pochelu's  Emancipation,  41  La.  Ann.  331,  6  South.  541 ;  Doles  v. 
Hilton,  48  Ark.  305,  3  S.  W.  193;  Young  v.  Hiner,  72  Ark.  299,  79  S.  W. 
1062 ;  Brown  v.  Wheelock,  75  Tex.  385,  12  S.  W.  Ill,  841. 

98  Boykin  v.  Collins,  140  Ala.  407,  37  South.  248;  Ketchum  v.  Faircloth- 
Segrest  Co.,  155  Ala.  256,  46  South.  476;  Doles  v.  Hilton,  48  Ark.  305,  3  S.  W. 
193 ;  Brown  v.  Wheelock,  75  Tex.  385,  12  S.  W.  Ill,  841.  The  function  of  the 
court  being  in  the  nature  of  a  special  authority  to  the  judge  as  commissioner, 
and  not  to  the  court,  no  presumption  in  favor  of  the  order  Is  indulged  in 
case  of  collateral  attack.  Buckley  v.  Herder  (Tex.  Civ.  App.)  133  S.  W.  703. 
A  void  decree  may  be  attacked  anywhere.  Lake  v.  Perry,  95  Miss.  550,  49 
South.  569. 

»»  Young  v.  Hiner,  72  Ark.  299,  79  S.  W.  1062;  Succession  of  Gaines,  42 
La.  Ann.  699,  7  South.  788.  But  the  decree  or  order  has  no  extraterritorial 


520  INFANTS  (Ch.  14 

ACTIONS  IN  TORT  BY  INFANTS 

219.  An  infant  has  the  same  right  as  an  adult  to  sue  for  tortious 

injuries.  Such  actions  are  governed  by  the  ordinary  rules 
of  law,  and,  if  the  infant  fails  to  exercise  due  care,  his  con- 
tributory negligence  may  bar  his  right  of  recovery. 

220.  The  due  care  required  by  law,  being  due  care  under  the  circum- 

stances of  the  case — 

(a)  A  less  degree  of  care  will  ordinarily  be  required  of  an  infant 

than  of  an  adult,  and  accordingly — 

(1)  An  infant  too  young  to  be  capable  of  exercising  due  care 

is  held,  as  a  matter  of  law,  incapable  of  contributory 
negligence. 

EXCEPTION— In  some  jurisdictions  the  negligence  of  the 
parent  or  guardian  will  be  imputed  to  the  child. 

(2)  In  general,  only  such  care  will  be  required  of  an  infant 

as  is  due  care  in  one  of  his  years  and  experience. 

(b)  A  greater  degree  of  care  is  required  of  an  adult  in  dealing 

with  an  infant  than  with  an  adult. 

(c)  An  adult  who  places  a  dangerous  agency,  which,  from  its  na- 

ture, is  attractive  to  children,  where  it  is  accessible  to 
them,  may  be  liable  for  injuries  caused  thereby,  though  the 
children  are  trespassers. 

In  the  case  of  an  injury  to  the  person  of  an  infant  by  the  tortious 
act  of  another,  two  causes  of  action  may  arise — one,  as  has  been 
seen,  in  favor  of  the  parent  for  loss  of  services;  *  and  one  in  favor 
of  the  infant  for  the  injury  to  his  person.2  In  actions  by  the  in- 
fant the  ordinary  rules  of  law  governing  the  question  of  negligence 
apply,  except  in  so  far  as  they  must  necessarily  be  modified  to  meet 
the  changed  conditions  arising  from  the  infant's  want  of  discretion 
and  experience.  A  child  of  very  tender  years  has  been  held,  as  a 

effect,  State  v.  Bunce,  65  Mo.  349;  Wilkinson  v.  Buster,  124  Ala.  574,  26 
South.  940;  and  does  not  affect  contracts  executed  in  other  jurisdictions. 

lAnte,  p.  365. 

2  Georgia  Pac.  Ry.  Co.  v.  Propst,  83  Ala.  518,  3  South.  764 ;  Louisville,  H. 
&  St.  L.  R.  Co.  v.  Lyons,  156  Ky.  222,  160  N.  W.  942,  denying  rehearing  155 
Ky.  396,  159  S.  W.  971,  48  L.  R.  A.  (N.  S.)  667 ;  McGreevey  v.  Boston  Elevated 
Ry.  Co.,  232  Mass.  347,  122  N.  E.  278;  Hartfield  v.  Roper,  21  Wend.  (N.  Y.) 
615,  34  Am.  Dec.  273.  But  in  an  action  by  a  minor  for  damages  for  injury  to 
his  person  he  cannot  recover  for  loss  of  time,  since  his  services  belonged  to 


§§  219-220)  ACTIONS  IN   TORT   BY  INFANTS  521 

matter  of  law,  incapable  of  contributory  negligence ; 8  and,  in  gen- 
eral, a  less  degree  of  care  is  required  of  an  infant  than  of  an  adulL 
The  degree  required  depends  on  his  age  and  knowledge,  and  is  such 
as  would  be  ordinary  care  in  one  of  his  years  and  experience,  under 
the  same  circumstances.4 

On  the  other  hand,  an  adult  will  be  held  to  a  higher  degree  of  care 
in  dealing  with  an  infant  than  with  one  of  mature  age  and  under- 
standing.5 To  the  general  rule,  that  one  injured  while  trespassing 
or  guilty  of  contributory  negligence  has  no  right  of  action  for  the 
injury,  there  is  an  exception  in  favor  of  children  in  case  they  are 
injured  by  dangerous  agencies  which  are  in  their  nature  likely  to 
be  tempting  to  them,  and  which  are  left  where  they  are  accessible. 
The  theory  on  which  these  cases  proceed  is  that  the  temptation  of 
an  attractive  plaything  to  a  child  is  a  thing  which  must  be  expected 
and  guarded  against,  and  that  the  placing  of  such  objects  where 

his  father.  Burke  v.  Ellis,  105  Tenn.  702,  58  S.  W.  855 ;  Cole  v.  Searfoss,  49 
Ind.  App.  334,  97  N.  E.  345 ;  Helm  v.  Phelps,  157  Ky.  795,  164  S.  W.  92.  But 
compare  Harris-Irby  Cotton  Co.  v.  Duncan,  57  Okl.  761,  157  Pac.  746.  He 
may  maintain  an  action  for  other  torts  such  as  slander.  Stewart  v.  Howe, 
17  111.  71 ;  Hurst  v.  Goodwin,  114  Ga.  585,  40  S.  E.  764,  88  Am.  St.  Rep.  43. 
A  child  cannot  after  its  birth  recover  from  a  railroad  company  for  a  deform- 
ity caused  by  the  company's  negligence  in  transporting  its  mother,  who  was 
then  enceinte.  Nugent  v.  Brooklyn  Heights  R.  Co.,  154  App.  Div.  667,  139  N. 
Y  Supp.  367 ;  Id.,  154  App.  Div.  953,  139  N.  Y.  Supp.  372,  appeal  dismissed 
209  N.  Y.  515,  102  N.  E.  1107.  To  the  same  effect,  see  Lipps  v.  Milwaukee 
Electric  Ry.  &  Light  Co.,  164  Wis.  272,  159  N.  W.  916,  L.  R,  A.  1917B,  334. 

s  Fink  v.  Furnace  Co.,  10  Mo.  App.  61 ;  American  Tobacco  Co.  v.  Polisco, 
104  Va.  777,  52  S.  E.  563 ;  Erie  City  Pass.  Ry.  Co.  v.  Schuster,  113  Pa.  412, 
6  Atl.  269,  57  Am.  Rep.  471 ;  Hartfield  v.  Roper,  21  Wend.  (N.  Y.)  615,  34  Am. 
Dec.  273 ;  Mangam  v.  Railroad  Co.,  38  N.  Y.  455,  98  Am.  Dec.  66 ;  Schmidt 
v.  Railway  Co.,  23  Wis.  186,  99  Am.  Dec.  158;  Toledo,  W.  &  W.  Ry.  Co.  v. 
Grable,  88  111.  441;  Morgan  v.  Bridge  Co.,  5  Dill.  96,  Fed.  Cas.  No.  9,802; 
Bay  Shore  R.  Co.  v.  Harris,  67  Ala.  6. 

*  Sioux  City  &  P.  R.  Co.  v.  Stout,  17  Wall.  657,  21  L.  Ed.  745 ;  Union  Pac. 
R.  Co.  v.  McDonald,  152  U.  S.  262,  14  Sup.  Ct.  619,  38  L.  Ed.  434;  Byrne 
v.  Railroad  Co.,  83  N.  Y.  620;  Lynch  v.  Smith,  104  Mass.  52,  6  Am.  Rep.  188; 
Dowling  v.  Allen,  88  Mo.  293 ;  Chicago  &  A.  R.  Co.  v.  Becker,  76  111.  29;  Evan- 
sich  v.  Railway  Co.,  57  Tex.  126,  44  Am.  Rep.  586;  Huff  v.  Ames,  16  Neb. 
139,  19  N.  W.  623,  49  Am.  Rep.  716 ;  Lynch  v.  Nurdin,  1  Q.  B.  29 ;  Fishburn 
v.  Burlington  &  Is.  W.  Ry.  Co.,  127  Iowa,  483,  103  N.  W.  481;  Slattery  v. 
Lawrence  Ice  Co.,  190  Mass.  79,  76  N.  E.  459.  It  has  been  held  that  boys 
10  or  12  years  of  age,  who  are  permitted  to  go  about  unattended,  may  fairly 
be  presumed  to  have  sense  enough  to  take  care  of  themselves  from  the  or- 
dinary and  usual  dangers  of  street  traffic.  TJ.  S.  v.  Wright,  26  Phil.  Rep.  217. 

s  Carter  v.  Towne,  98  Mass.  5)67,  96  Am.  Dec.  682;  Binford  v.  Johnston, 
82  Ind.  426,  42  Am.  Rep.  508;  Bransom's  Adm'r  v.  Labrot,  81  Ky.  638,  50 
Am.  Rep.  193. 


522  INFANTS  (Ch.  14 

they  are  accessible  to  children  is  an  implied  invitation  to  them.8 
When  a  child  is  too  young  to  be  capable  of  exercising  care,  it  is  held 
in  some  jurisdictions  that  contributory  negligence  on  the  part  of 
his  parent  or  guardian  will  prevent  recovery  by  the  child.7  By  the 
weight  of  authority,  however,  this  rule  is  expressly  repudiated.8 

«An  owner  has  been  held  liable,  on  this  principle,  for  injury  to  a  child  caus- 
ed by  the  caving  In  of  a  sandpit,  attractive  to  and  frequented  by  children, 
Fink  v.  Missouri  Furnace  Co.,  10  Mo.  App.  61  (contra,  Ratte  v.  Dawson,  50 
Minn.  450,  52  N.  W.  965) ;  for  leaving  dangerous  explosives  accessible  to  chil- 
dren, as  a  single  torpedo  unguarded  on  a  railway  track,  Harriman  v.  Pitts- 
burg,  C.  &  St.  L.  Ry.  Co.,  45  Ohio  St.  11,  12  N.  E.  451,  4  Am.  St.  Rep.  507; 
and  dynamite  in  an  open  shed,  near  where  children  were  in  the  habit  of  play- 
Ing,  Powers  v.  Harlow,  53  Mich.  507,  19  N.  W.  257,  51  Am.  Rep.  154.  In 
this  case  the  court  said:  "If  they  leave  exposed  to  the  observation  of  children 
anything  which  would  be  tempting  to  them,  and  which  they  in  their  Immature 
judgment  might  naturally  suppose  that  they  were  at  Ifberty  to  handle  or  play 
with,  they  should  expect  that  liberty  to  be  taken."  On  the  same  principle, 
railroads  have  been  held  liable  for  injuries  caused  to  children  from  play- 
ing on  turntables.  Sioux  City  &  P.  R,  Co.  v.  Stout,  17  Wall.  657,  21  L. 
Ed.  745 ;  Keffe  v.  Milwaukee  &  St.  P.  Ry  Co.,  21  Minn.  211,  18  Am.  Rep.  393. 
In  the  last  case  the  court  said:  "Now,  what  an  express  invitation  would  be 
to  an  adult,  the  temptation  of  an  attractive  plaything  is  to  a  child  of  tender 
years.  If  the  defendant  had  left  this  turntable  unfastened  for  the  purpose  of 
attracting  young  children  to  play  upon  it,  knowing  the  danger  into  which 
it  was  thus  alluring  them,  it  certainly  would  be  no  defense  to  an  action  by 
the  plaintiff,  who  had  been  attracted  upon  the  turntable  and  injured,  to  say 
that  the  plaintiff  was  a  trespasser,  and  that  his  childish  instincts  were  no 
excuse  for  his  trespass."  See,  also,  Nagel  v.  Railway  Co.,  75  Mo.  653,  42 
Am.  Rep.  418;  Evansich  v.  Gulf,  C.  &  S.  F.  Ry.  Co.,  57  Tex.  126,  44  Am. 
Rep.  586;  Kansas  Cent.  Ry.  Co.  v.  Fitzsimmons,  22  Kan.  686,  31  Am.  Rep. 
203;  Union  Pac.  R.  Co.  v.  McDonald,  152  U.  S.  262,  14  Sup.  Ct.  619,  38  L. 
Ed.  434. 

7  This  doctrine  was  first  laid  down  in  Hartfleld  v.  Roper,  21  Wend.  (N. 
T.)  615,  34  Am.  Dec.  273.    Cowen,  J.,  said:  "It  is  perfectly  well  settled  that, 
if  the  party  injured  by  a  collision  on  the  highway  has  drawn  the  mischief 
upon  himself  "by  his  own  neglect,  he  is  not  entitled  to  an  action,  even  though 
he  be  lawfully  in  the  highway  pursuing  his  travels,  which  can  scarcely  be 
said  of  a  toppling  infant,  suffered  by  his  guardians  to  be  there,  either  as 
a  traveler,  or  for  the  purpose  of  pursuing  his  sports.    The  application  may  be 
harsh  when  made  to  small  children.    As  they  are  known  to  have  no  personal 
discretion,  common  humanity  is  alive  to  their  protection;    but  they  are  not, 
therefore,  exempt  from  the  legal  rule,  when  they  bring  an  action  for  redress, 
and  there  is  no  other  way  of  enforcing  it  except  by  requiring  due  care  at 
the  hands  of  those  to  whom  the  law  and  the  necessity  of  the  case  has  dele- 
gated the  exercise  of  discretion.    An  infant  is  not  sui  juris.    He  belongs  to 
another,  to  whom  discretion  in  the  care  of  his  person  is  exclusively  confided. 
That  person  is  keeper  and  agent  for  this  purpose,    and,  in  respect  to  third 
persons,  his  act  must  be  deemed  that  of  the  infant;   his  neglect,  the  infant's 
neglect."     And  see  Holly  v.  Gaslight  Co.,  8  Gray  (Mass.)  123,  69  Am.  Dec. 

8  See  note  8  on  following  page. 


221-222)  LIABILITY   OP  INFANTS  FOR   TORTS  523 


LIABILITY  OF  INFANTS  FOR  TORTS 

221.  An  infant  must  answer  for  his  torts  as  fully  as  an  adult,  and 

the  fact  that  the  tort  is  committed  under  authority  or  com- 
mand of  his  parent  is  no  defense. 

222.  Since  an  infant  is  not  bound  by  his  contract,  except  in  certain 

cases,  a  breach  of  contract,  except  in  those  cases,  cannot  be 
treated  as  a  tort,  so  as  to  make  him  liable.  The  tort  must 
be  separate  and  independent  of  it. 

Infancy  is  no  defense  for  a  tort  committed  by  a  minor.  He  is 
liable  for  injuries  caused  to  the  person  or  property  of  another  as 

233 ;  Leslie  v.  City  of  Lewiston,  62  Me.  468;  Evansville  &  C.  R,  Co.  v.  Wolf, 
59  Ind.  89 ;  Schmidt  v.  Milwaukee  &  St.  P.  Ry.  Co.,  23  Wis.  186,  99  Am.  Dec. 
158 ;  Toledo,  W.  &  W.  Ry.  Co.  v.  Grable,  88  111.  441 ;  Meeks  v.  Southern  Pac. 
R.  Co.,  52  Cal.  602 ;  Baltimore  &  O.  R.  Co.  v.  State,  to  Use  of  Fryer,  30  Md. 
47 ;  Hathaway  v.  Toledo,  W.  &  W.  Ry.  Co.,  46  Ind.  25 ;  Weil  v.  Dry  Dock,  B. 
B.  &  B.  R.  Co.,  119  N.  Y.  147,  23  N.  E.  487. 

«  Robinson  v.  Cone,  22  Vt.  213,  54  Am.  Dec.  67.  In  this  case  the  court 
said:  "Here  the  jury  have  found  that  the  plaintiff  was  properly  suffered 
by  his  parents  to  attend  school  at  the  age  and  in  the  manner  he  did,  and 
that  injury  happened  through  the  ordinary  neglect  of  the  defendant,  or,  if 
not  properly  suffered  to  go  to  school,  then  that  the  defendant  was  guilty  of 
gross  neglect;  for  the  judge  put  the  case  in  the  alternative  to  the  jury,  and 
they  have  found  a  general  verdict  for  the  plaintiff.  And  we  are  satisfied  that 
although  a  child  or  idiot  or  lunatic  may,  to  some  extent,  have  escaped  into 
the  highway  through  the  fault  or  negligence  of  his  keeper,  and  so  be  im- 
properly there,  yet  if  he  is  hurt  by  the  negligence  of  the  defendant,  he  is  not 
precluded  from  his  redress."  And  see  Daley  v.  Norwich  &  W.  R.  Co.,  26  Conn. 
591,  68  Am.  Dec.  413 ;  Erie  City  Pass.  Ry.  Co.  v.  Schuster,  113  Pa.  412,  6  Atl. 
269,  57  Am.  Rep.  471;  Belief ontaine  &  I.  R.  Co.  v.  Snyder,  18  Ohio  St.  399,  98 
Am.  Dec.  175;  Government  St.  R.  Co.  v.  Hanlon,  53  Ala.  70 ;  Whirley  v.  White- 
man,  1  Head  (Tenn.)  610;  Huff  v.  Ames,  16  Neb.  139,  19  N.  W.  623,  49  Am. 
Rep.  716 ;  Mattson  v.  Minnesota  &  N.  W.  R.  Co.,  95  Minn.  477,  104  N.  W.  443, 
70  L.  R.  A.  503,  111  Am.  St.  Rep.  483.  overruling  Fitzgerald  v.  St.  Paul,  M. 

6  M.  Ry.  Co.,  29  Minn.  336,  13  N.  W.  168,  43  Am.  Rep.  212 ;  Wilmot  v.  McPad- 
den,  78  Conn.  276,  61  Atl.  1069  ;•  Boehm  v.  City  of  Detroit,  141  Mich.  277,  104 
N.  W.  626;    Jacksonville  Electric  Co.  v.  Adams,  50  Fla.  429,  39  South.  183, 

7  Ann.  Gas.  241 ;    Chicago  City  Ry.  Co.  v.  Wilcox,  138  111.  370,  27  N.  E,  899, 
21  L.  R.  A.  76;    Walters  v.  Chicago,  R.  I.  &  P.  R.  Co.,  41  Iowa,  71;    Bat- 
tighill  v.   Humphreys,  64  Mich.  494,  31  N.  W.  894;    Boland  v.  Missouri  R. 
Co.,  36  Mo.  484;    Winters  v.  Kansas  City  Cable  Ry.  Co.,  99  Mo.  509,  12  S. 
W.  652,  6  L.  R.  A.  536,  17  Am.  St.  Rep.  591.    The  Missouri  cases  are,  however, 
somewhat  conflicting.     There  is  also  some  doubt  as  to  the  rule  in  Kansas, 
Maryland,  and  Wisconsin.     Smith  v.  Atchison,  T.  &  S.  F.  R.  Co.,  25  Kan. 
742;   McMahon  v.  Northern  Cent.  R.  R.  Co.,  39  Md.  439;    Ewen  v.  Chicago  & 
N.  W.  Ry.  Co.,  38  Wis.  613 ;   Hoppe  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  61  Wis. 
357,  21  N.  W.  227. 


524  INFANTS  (Ch.  14 

fully  as  is  an  adult."  Thus,  an  action  in  tort  will  lie  against  a:» 
infant  for  an  injury  caused  by  his  negligence;10  for  conversion,1"* 
trespass,12  assault,18  or  slander.1*  "The  law  with  respect  to  lia- 
bility of  infants  has  proceeded  rather  on  the  theory  of  compensating 
the  injured  party  than  of  consistently  maintaining  any  logical 
doctrine  as  to  the  mental  attitude  of  the  wrongdoer,  and  of  basing 
the  responsibility  on  the  wrongful  intention  or  inadvertence.  The 
cases  proceed  on  the  propriety  of  holding  all  persons  liable  for  ac- 

»  Daugherty  v.  Reveal,  54  Ind.  App.  71,  102  N.  E.  381 ;  Brlese  v.  Maechtle. 
146  Wis.  88,  130  N.  W.  893,  35  L.  R.  A.  (N.  S.)  574,  Ann.  Cas.  1912C,  176; 
Daggy  v.  Miller,  180  Iowa,  1146,  162  N.  W.  854. 

10  Jag.  Torts,  159,  and  cases  there  cited ;    Bac.  Abr.  "Infancy  and  Age," 
H;    School  Dist.  No.  1  v.  Bragdon,  23  N.  H.  507;    Conklin  v.  Thompson,  29 
Barb.  (N.  Y.)  218;  Bullock  v.  Babcock,  3  Wend.  (N.  Y.)  391 ;   Peterson  v.  Haff- 
ner,  59  Ind.  130,  26  Am.  Rep.  81;   Conway  v.  Reed,  66  Mo.  346,  27  Am.  Rep. 
354;    House  v.  Fry,  30  Cal.  App.  157,  157  Pac.  500;    Huchtlng  v.  Engel,  17 
Wis.  230,  84  Am.  Dec,  741.    On  the  question  of  negligence,  the  Jury  has  a 
right  to  take  into  consideration  the  childhood  of  the  parties.    Harvey  v.  Dun- 
lop,  Lalor's  Supp.  (N.  Y.)  193.     In  Bullock  v.  Babcock,  supra,  it  was  said: 
"Where  infants  are  the  actors,  that  might  probably  be  considered  an  unavoid- 
able accident  whir-h  would  not  be  so  considered  where  the  actors  are  adults." 
Where  defendants  were  13  and  16,  it  was  held  that  their  youth  was  not  to  be 
taken  into  consideration  on  the  question  of  negligence.    Neal  v.  Gillett,  23 
Conn.  437.    A  minor  may  reasonably  be  expected  to  exercise  that  degree  of 
care  which  a  person  of  his  age,  capacity,  discretion,  and  experience  would 
naturally  and  ordinarily  use.     Briese  v.  Maechtle,  146  Wis.  89,  130  N.  W. 
893,  35  L.  R.  A.  (N.  S.)  574,  Ann.  Cas.  1912C,  176.    And  see  Harnett  v.  Boston 
Store  of  Chicago,  265  111.  331,  106  N.  E.  837,  L.  R.  A.  1915C,  460,  affirming 
185  111.  App.  332.    Owner  of  motor  car  having  loaned  it  to  infant  cannot  re- 
cover in  tort  for  injuries  to  car  occasioned  by  infant's  unskillful  driving. 
Brunhoelzl  v.  Brandes,  90  N.  J.  Law,  31,  100  Atl.  163.    An  infant  owner  of  a 
store  building  is  not  liable  for  the  negligence  of  a  janitor  employed  by  him, 
where  the  janitor  failed  to  give  warning  of  an  opening  in  the  sidewalk  of  the 
premises.    Covault  v.  Nevitt,  157  Wis.  113,  146  N.  W.  1115,  51  L.  R,  A.  (N.  S.) 
1092,  Ann.  Cas.  1916A,  959. 

11  Jag.  Torts,  159;    Mills  v.  Graham,  1  Bos.  &  P.  140;    Vasse  v.  Smith,  6 
Cranch.  226,  3  L.  Ed.  207 ;    Walker  v.  Davis,  1  Gray  (Mass.)  506 ;    Baxter  v. 
Bush,  29  Vt.  465,  70  Am.  Dec.  429;    Fitts  v.  Hall,  9  N.  H.  441;    Pledge  v. 
Griffith,  199  Mo.  App.  303,  202  S.  W.  460;   Lewis  v.  Littlefield,  15  Me.  235. 

"Campbell  v.  Stakes,  2  Wend.  (N.  Y.)  137,  19  Am.  Dec.  561;  O'Leary  v. 
P-ooks  Elevator  Co.,  7  N.  D.  554,  75  N.  W.  919,  41  L.  R.  A.  677;  Munden  v. 
Harris,  153  Mo.  App.  652,  134  S.  W.  1076;  Jag.  Torts,  159.  But  see  Huggett 
v.  Erb,  182  Mich.  524,  148  N.  W.  805,  Ann.  Cas.  1916B,  352. 

i»  Watson  v.  Wrightsman,  26  Ind.  App.  437,  59  N.  E.  1064. 

«  Defries  v.  Davis,  1  Bing.  N.  C.  692 ;  Fears  v.  Riley,  148  Mo.  49,  49  S.  W. 
836 ;  Jag.  Torts,  159.  An  infant  under  7  years  of  age  is  not  liable  for  slander 
or  libel,  and  if  he  is  over  7  and  under  14  he  is  not  liable  unless  he  is  capable 
of  entertaining  the  malice  essential  to  slander  and  libel.  Munden  v.  Harris, 
153  Mo.  App.  652,  134  S.  W.  1076. 


§§  221-222)  LIABILITY   OP   INFANTS   FOR   TOETS  525 

tual  damages  committed  by  them,  and  of  ignoring  volition  as  a 
necessary  element  of  a  juridical  cause."  1B  As  was  said  by  Lord 
Kenyon  in  a  leading  English  case :  "If  an  infant  commit  an  assault, 
or  utter  slander,  God  forbid  that  he  should  not  be  answerable  for  it 
in  a  court  of  justice."  16  The  fact  that  a  tort  is  committed  by  an 
infant  under  authority  or  command  of  his  parent  may  render  the 
parent  also  liable,  but  it  will  not  excuse  the  infant.17 

Infants  cannot  empower  an  agent  or  attorney  to  act  for  them, 
nor,  by  the  weight  of  authority,  affirm  what  another  may  have  as- 
sumed to  do  on  their  account ;  and  therefore  they  are  not  liable  for 
torts  alleged  to  have  been  committed  by  their  agent.  They  cannot 
be  held  liable  for  "torts  by  a  prior  or  subsequent  assent,  but  only  for 
their  own  act."  " 

There  are  cases  in  which  tenderness  of  age  may  be  available  as  a 
defense.  "In  certain  classes  of  cases,  the  inability  of  very  young 
infants  to  be  intelligent  actors,  and  therefore  their  inability  to  ju- 
dicially cause  a  wrong,  has  been  recognized.  In  such  cases  the 
wrong  is  considered  due  to  unavoidable  accident.19  And,  where 
malice  is  a  necessary  element,  an  infant  may  or  may  not  be  liable, 
according  as  his  age  and  capacity  may  justify  imputing  malice  to 
him,  or  may  preclude  the  idea  of  his  indulging  it."  20 

Tort  or  Contract 

While  an  infant  is  liable  for  his  torts,  yet  if  the  tort  arises  from 
a  breach  of  contract,  and  is  not  separate  from  and  independent  of 
the  contract,  he  cannot  be  deprived  of  his  defense  of  infancy,  by 
the  plaintiff's  merely  changing  the  form  of  action,  and  suing  in 
tort.21  If  however,  the  tort,  though  in  a  sense  connected  with 

is  Jag.  Torts,  159,  where  the  subject  is  discussed,  and  numerous  cases  col- 
lected. 

IB  Jennings  v.  Rundall,  8  Term  R.  335. 

IT  Scott  v.  Watson,  46  Me.  362,  74  Am.  Dec.  457 ;  O'Leary  v.  Brooks  Eleva- 
tor Co.,  7  N.  D.  554,  75  N.  W.  919,  41  L.  R.  A.  677 ;  Humphrey  v.  Douglass,  10 
Vt.  71,  33  Am.  Dec.  177;  Smith  v.  Kron,  96  N.  C.  392,  2  S.  E.  533;  Wilson 
v.  Garrard,  59  111.  51;  Jag.  Torts,  160. 

is  Jag.  Torts,  160;  Burnham  v.  Seaverns,  101  Mass.  360,  100  Am.  Dec.  123; 
Cunningham  v.  Railway  Co.,  77  111.  178. 

i»  Bullock  v.  Babcock,  3  Wend.  (N.  Y.)  391;  Jag.  Torts,  160;  Ames  &  S.  Cas. 
Torts,  30;  Whart.  Neg.  §  88;  note  10,  p.  524,  supra. 

20  Jag.  Torts,  160;   Cooley,  Torts  (2d  Ed.)  120;   Johnson  v.  Pye,  1  Sid.  258; 
Stephens  v.  Stephens,  172  Ky.  780,  189  S.  W.  1143;    Munden  v.  Harris,  153 
Mo.  App.  652,  134  S.  W.  1076. 

21  Jag.  Torts,  162;   Clark,  Cont.  260;   Jennings  v.  Rundall,  8  Term  R,  335; 
Lowery  v.  Cate,  108  Tenn.  54,  64  S.  W.  1068,  57  L.  R.  A.  673,  91  Am.  St.  Rep. 


526  INFANTS  (Ch.  14 

the  contract,  is  not  a  mere  breach  of  it,  but  a  distinct  wrong  of  it- 
self, the  infant  is  liable.22  Where  an  infant  hired  a  horse  to  ride, 
and  injured  it  by  overriding,  it  was  held  that  he  could  not  be  made 
liable  upon  the  contract  by  framing  the  action  in  tort  for  negli- 
gence.28 Where,  on  the  other  hand,  an  infant  hired  a  horse  express- 
ly for  riding,  and  not  for  jumping,  and  then  lent  it  to  a  friend  who 
killed  it  in  jumping,  he  was  held  liable,  because  what  he  had  done 
was  not  an  abuse  of  the  contract,  but  an  act  which  he  was  express- 
ly forbidden  to  do,  and  was  therefore  independent  of  the  contract.24 
In  other  words,  "if  an  infant  bailee  does  any  willful  or  positive  act, 
amounting  to  an  election  on  his  part  to  disaffirm  the  contract,  or  to 
convert  the  property  to  his  own  use,  or  if  he  wantonly  and  inten- 

744;  Brunhoelzl  v.  Brandes,  90  N.  J.  Law,  31,  100  Atl.  163;  Collins  v.  Gif- 
ford,  203  N.  Y.  465,  96  N.  E.  721,  38  L.  R,  A.  (N.  S.)  202,  Ann.  Gas.  1913A, 
969,  reversing  134  App.  Div.  988,  118  N.  Y.  Supp.  1100;  Frank  Spangler 
Co.  v.  Haupt,  53  Pa.  Super.  Ct.  545 ;  Eaton  v.  Hill,  50  N.  H.  235,  9  Am.  Rep. 
189,  and  cases  hereafter  cited.  • 

22  Jag.  Torts,  162;  Clark,  Cont.  260;  Burnard  v.  Haggis,  14  C.  B.  (N.  S.) 
45;  Homer  v.  Thwing,  3  Pick.  (Mass.)  492;  Ray  v.  lubbs,  50  Vt.  688,  28  Am. 
Rep.  519,  and  cases  hereafter  cited.  Although  a  minor's  contract  for  the  pur- 
chase of  a  piano  on  installments  is  not  binding,  she  cannot  take  advantage  of 
her  minority  to  commit  a  fraud  on  the  seller  by  making  a  sale  of  the  instru- 
ment to  a  third  person.  Dorothy  v.  Salzberg,  207  111.  App.  133. 

28  Jennings  v.  Rundall,  8  Term  R.  335 ;  *  YOUNG  v.  MUHLING,  48  App.  Div. 
617,  63  N.  Y.  Supp.  181,  Cooley  Cas.  Persons  and  Domestic  Relations,  282. 
The  infant  cannot  be  held  liable  for  injuries  to  the  thing  bailed  caused  by 
his  mere  lack  of  skill  or  experience.  Moore  v.  Eastman,  1  Hun  (N.  Y.)  578; 
Eaton  v.  Hill,  50  N.  H.  235,  9  Am.  Rep.  189.  In  the  latter  case  it  was  said: 
"When  the  infant  stipulates  for  ordinary  skill  and  care  In  the  use  of  the 
thing  bailed,  but  fails  for  want  of  skill  and  experience,  and  not  from  any 
wrongful  intent,  it  is  in  accordance  with  the  policy  of  the  law  that  his  priv- 
ilege, based  upon  his  want  of  capacity  to  make  and  fully  understand  such 
contracts,  should  shield  him.  A  failure  in  such  a  case,  from  mere  want  of 
ordinary  care  or  skill,  might  well  be  regarded  as,  in  substance,  a  breach  of 
contract,  for  which  the  infant  is  not  liable,  even  although  in  ordinary  cases 
an  action  ex  delicto  might  be  sustained.  But  when,  on  the  other  hand,  the 
infant  wholly  departs  from  his  character  of  bailee,  and,  by  some  positive  act, 
willfully  destroys  or  injures  the  thing  bailed,  the  act  is  in  its  nature  essen- 
tially a  tort,  the  same  as  if  there  had  been  no  bailment,  even  if  assumpsit 
might  be  maintained  in  the  case  of  an  adult,  or  a  promise  to  return  the 
thing  safely." 

2*  Burnard  v.  Haggis,  14  C.  B.  (N.  S.)  45.  The  same  is  true  where  an  in- 
fant hires  a  horse  to  go  to  one  place,  but  goes  elsewhere,  and  injures  the 
horse  by  overdriving.  He  is  liable  in  trover  or  trespass.  Homer  v.  Thwing, 
3  Pick.  (Mass.)  492.  And  see  CHURCHILL  v.  WHITE,  58  Neb.  22,  78  N.  W. 
369,  76  Am.  St.  Rep.  64,  Cooley  Cas.  Persons  and  Domestic  Relations,  285; 
Campbell  v.  Stakes,  2  Wend.  (N.  Y.)  137,  19  Am.  Dec.  561;  Hall  v.  Corcoran, 
107  Mass.  251,  9  Am.  Rep.  30 ;  Woodman  v.  Hubbard,  25  N.  H.  73,  57  Am.  Dec. 


§§  221-222)  LIABILITY  OF  INFANTS   FOB   TORTS  527 

tionally  commits  a  trespass,  his  infancy  is  no  protection."  25  A 
good  illustration  of  the  application  of  the  principle  under  considera- 
tion is  in  the  case  of  seduction  under  a  promise  of  marriage.  A 
promise  by  an  infant  to  marry  is  not  binding  on  him,  and  he  could 
not  be  sued  for  the  mere  breach  thereof;  but  he  may,  nevertheless, 
be  held  liable  in  an  action  ex  delicto  for  seducing  a  woman  under  a 
promise  of  marriage.26 

This  question  frequently  arises  in  actions  against  an  infant  for 
fraud  in  connection  with  a  contract.  If  the  action  proceeds  on  the 
idea  that  the  contract  exists,  it  cannot  be  maintained.  Thus,  an  ac- 
tion will  not  lie  against  an  infant  for  false  warranty  in  the  sale  of 
goods;27  nor  will  an  action  lie  for  falsely  warranting  a  horse  to 
be  sound.28  It  has  been  held  that,  if  an  infant  obtains  goods  by 
false  representations — and  this  includes  false  representations  that 
he  is  of  age — the  other  party  may  avoid  the  contract  on  the  ground 
of  the  fraud;  and  in  such  event  the  property  may  be  considered  as 
never  having  passed  from  him,  or  as  having  revested  in  him,  and 
therefore  he  may  maintain  replevin  to  recover  the  goods,  or  trover 
for  their  conversion.29  Many  cases  hold  that  false  representations 
by  an  infant  that  he  is  of  age,  inducing  the  other  party  to  contract 
with  him,  do  not  estop  him  from  pleading  his  infancy  if  sued  upon 
the  contract,30  and  that  such  false  representations  will  not  estop 
him  from  avoiding  his  contract,  and  seeking  affirmative  relief,  as  to 


310 ;  Tovme  v.  Wiley,  23  Vt.  355,  56  Am.  Dec.  85 ;  Ray  v.  Tubbs,  50  Vt.  688, 
28  Am.  Rep.  519 ;  Freeman  v.  Boland,  14  R.  I.  39,  51  Am.  Rep.  340 ;  Lewis  v. 
Littlefield,  15  Me.  233.  Contra,  Penrose  v.  Curren,  3  Rawle  (Pa.)  351,  24 
Am.  Dec.  356 ;  Wilt  v.  Welsh,  6  Watts  (Pa.)  9.  And  see  Schenk  v.  Strong,  4 
N.  J.  Law,  97.  That  trover  will  lie  for  goods  converted  by  an  infant,  al- 
though in  his  possession  by  virtue  of  a  contract,  see,  also,  Vasse  v.  Smith, 
6  Cranch,  226,  3  L.  Ed.  207 ;  Fitts  v.  Hall,  9  N.  H.  441 ;  Mathews  v.  Cowan, 
59  111.  341. 

25  Jag.  Torts,  162. 

as  Becker  v.  Mason,  93  Mich.  336,  53  N.  W.  361. 

27  Prescott  v.  Norris,  32  N.  H.  101;  Doran  v.  Smith,  49  Vt.  353;  Studwell 
v.  Shapter,  54  N.  Y.  249. 

28Qilson  v.  Spear,  38  Vt.  311,  88  Am.  Dec.  659;  Green  v.  Greenbank,  2 
Marsh.  C.  P.  485 ;  Hewlett  v.  Haswell,  4  Camp.  118.  But  see  Vance  v.  Word, 
1  Nott  &  McC.  (S.  C.)  197,  9  Am.  Dec.  683.  And  see  Patterson  v.  Kasper,  182 
Mich.  281,  148  N.  W.  690,  L.  R,  A.  1915A,  1221,  holding  that,  where  an  infant 
sold  a  horse  misrepresenting  his  character,  the  infant  could  not  escape  lia- 
bility for  tort  on  the  theory  that  the  matter  arose,  ex  contractu. 

2  9  Badger  v.  Phinney,  15  Mass.  359,  8  Am.  Dec.  105;   Neff  v.  Landis,  110 
Pa.  204,  1  Atl.  177. 
»     s°  Ante,  p.  490. 


528  INFANTS  (Ch.  14 

recover  property  which  he  has  parted  with.*1.  By  the  weight  of 
authority,  if  an  infant  fraudulently  induces  another  to  deal  with 
him  by  falsely  representing  that  he  is  of  age,  and  afterwards  avoids 
the  contract,  the  other  party  may  maintain  an  action  of  deceit 
against  him.82  There  are  cases,  however,  which  hold  the  other 
way.88 

In  equity  an  infant  stands  in  a  very  different  position  as  to  his 
fraudulent  representations;  and  where  he  has  falsely  represented 
that  he  is  of  age,  or  been  guilty  of  other  fraudulent  acts,  whereby, 
he  has  entrapped  others  into  selling  or  purchasing  property,  or  ad- 
vancing money  on  it,  he  will  not  be  heard  to  plead  his  infancy  to 
the  other's  prejudice;  and  the  general  tendency  of  courts  of  equity 
is  to  refuse  to  recognize  the  disability  of  infancy  when  taken  advan- 
tage of  to  commit  a  fraud.84 

Where  the  substance  of  the  action  is  in  tort,  it  cannot  be  defeat- 
ed by  the  plea  of  infancy,  though  it  is  in  form  an  action  ex  contrac- 
tu,  for,  as  has  been  seen,  an  infant  is  bound  by  obligations  quasi  ex 
contractu,  or  contracts  created  by  law.35  Thus,  if  he  embezzles  or 

si  Ante,  p.  490. 

82  Fitts  v.  Hall,  9  N.  H.  441 ;  Rice  v.  Boyer,  108  Ind.  472,  9  N.  E.  420,. 
58  Am.  Rep.  53 ;  Wallace  v.  Morss,  5  Hill  (N.  Y.)  391 ;  Eckstein  v.  Frank,  1 
Daly  (N.  Y.)  334. 

as  Johnson  v.  Pie,  1  Lev.  169  (approved  by  Parke,  B.,  in  Price  v.  HewetU 
8  Exch.  146) ;  Brooks  v.  Sawyer,  191  Mass.  151,  76  N.  E.  953,  114  Am.  St. 
Rep.  594 ;  Slayton  v.  Barry,  175  Mass.  513,  56  N.  E.  574,  49  L.  R.  A.  560,  78 
Am.  St.  Rep.  510;  Nash  v.  Jewett,  61  Vt.  501,  18  Atl.  47,  4  L.  R.  A.  561,  15 
Am.  St.  Rep.  931.  See  Ferguson  v.  Bobo,  54  Miss.  121.  Infants  are  not  liable 
in  tort  to  company  which  sold  them  motorcycles  for  deceit  arising  from  false 
representations  as  to  their  age,  or  for  damages  to  machines  while  in  their 
possession  and  used  by  them  under  contracts  of  sale.  Raymond  v.  General 
Motorcycle  Co.,  230  Mass.  54,  119  N.  E.  359. 

8*  Ravage  v.  Foster,  9  Mod.  35;  Cory  v.  Gertcken,  2  Madd.  40;  Ex  parte 
Unity  Joint-Stock  Mut.  Banking  Ass'n,  3  De  Gex  &  J.  63 ;  Overton  v.  Ban- 
ister, 3  Hare,  503;  Ferguson  v.  Bobo,  54  Miss.  121;  Evans  v.  Morgan,  69 
Miss.  328,  12  South.  270;  Hayes  v.  Parker,  41  N.  J.  Eq.  630,  7  Atl,  511; 
Schmitheimer  v.  Eiseman,  7  Bush  (Ky.)  298.  Contra,  Geer  v.  Hovy,  1  Root 
(Conn.)  179.  And  see  Sims  v.  Everhardt,  102  U.  S.  300,  26  L.  Ed.  87;  Brown 
v.  McCune,  5  Sandf.  (N.  Y.)  224.  False  representations,  knewn  by  tho  party 
to  whom  they  were  made  to  be  false,  will  not  estop  the  infant.  Charles 
v.  Hastedt,  51  N.  J.  Eq.  171,  26  <o.tl.  564.  Mere  failure  to  disclose  his  age 
has  been  held  not  to  estop  a  minor  from  avoiding  his  contract,  even  in  equity. 
Baker  v.  Stone,  136  Mass.  405;  Sewell  v.  Sewell,  92  Ky.  500,  18  S.  W.  162, 
36  Am.  St  Rep.  606;  Davidson  v.  Young,  38  111.  145;  Price  v.  Jennings,  62 
Ind.  Ill;  Thormaehlen  v.  Kaeppel,  86  Wis.  378,  56  N.  W.  1089.  Ferguson 
v.  Bobo,  supra,  apparently  contra,  is  distinguished  in  Brantley  v.  Wolf,  CO- 
Miss.  420. 

ss  Ante,  p.  477. 


§§  223-224)        RESPONSIBILITY  OP  INFANTS   FOR   CRIME  52{> 

converts  money,  the  party  injured  may  waive  the  tort,  and  maintain 
assumpsit  for  money  had  and  received,  and  infancy  will  be  no  de- 
fense.86 

RESPONSIBILITY  OF  INFANTS  FOR  CRIME 

223.  At  common  law  a  child  under  the  age  of  7  years  is  conclusively 

presumed  to  be  incapable  of  entertaining  a  criminal  intent, 
and  cannot  commit  a  crime.  Between  the  ages  of  7  and  14 
the  presumption  still  exists,  but  may  be  rebutted.  After 
the  age  of  14  he  is  presumed  to  have  sufficient  capacity, 
and  must  affirmatively  show  the  contrary. 

224.  At  common  law  a  boy  under  the  age  of  14  is  conclusively  pre- 

sumed physically  incapable  of  committing  rape.  In  some 
jurisdictions,  though  the  presumption  exists,  it  may  be  re- 
butted. 

/ 

The  ground  of  an  infant's  general  exemption  from  criminal  re- 
sponsibility for  his  acts  is  the  want  of  sufficient  mental  capacity 
to  entertain  the  criminal  intention  which  is  an  essential  element 
of  every  crime.  If  a  child,  when  he  commits  a  wrongful  act,  is  un- 
der the  age  of  7  years,  not  even  the  clearest  evidence — not  even  his 
own  confession,  indeed — will  be  received  on  the  part  of  the  state 
to  show  that  he  was  of  a  mischievous  discretion.  Under  that  age 
he  is  absolutely  irresponsible.37  If,  however,  he  has  reached  the 
age  of  7,  the  state  is  permitted  to  prove  that  he  was  of  sufficient 
capacity  to  entertain  a  criminal  intention.  In  the  absence  of  such 

36  Bristow  v.  Eastman,  1  Esp.  172 ;  Elwell  v.  Martin,  32  Vt.  217.  In  the 
latter  case  the  court  says:  "As  infancy  does  nofr  protect  him  from  the  con- 
sequences of  his  tortious  acts,  why  should  it  furnish  him  with  a  defense 
when  sued  ex  contractu,  instead  of  ex  delicto?  *  *  *  It  is  not  a  contract 
in  which  he  may  have  been  cheated,  and  against  which  infancy  shields  him, 
but  a  willful  wrong  which  he  has  committed  against  another,  and  in  which 
the  law  implies  the  obligation  to  make  restitution."  And  see  Shaw  v.  Coffin, 
58  Me.  254,  4  Am.  Rep.  290. 

374  Bl.  Comm.  22;  1  Hale,  P.  C.  26,  27;  Clark,  Cr.  Law,  49;  Clark,  Cr. 
Cas.  77 ;  State  v.  Fisk,  15  N.  D.  589,  108  N.  W.  485.  11  Ann.  Gas.  1061 ;  State 
v.  Davis,  104  Tenn.  501,  58  S.  W.  122;  United  States  v.  Behrendsohn  (D.  C.) 
197  Fed.  953;  Hampton  v.  State,  1  Ala.  App.  156,  55  South.  1018;  Beason  v. 
State,  96  Miss.  105,  50  South.  488;  People  v.  Townsend,  3  Hill  (N.  Y.)  479. 
The  statutes  in  some  few  states  have  raised  the  age  'of  absolute  incapacity 
to  10  years.  Angelo  v.  People,  96  111.  209,  36  Am.  Rep.  132;  Singleton  v. 
State,  124  Ga.  136,  52  S.  E.  156.  A  child  eight  years  of  age  cannot  be  guilty 
of  any  crime  or  misdemeanor.  Harrold  v.  Clinton  Gas  &  Electric  Co.,  205  111. 
App.  12. 

TIFF.P.&  D.REL.(3o  ED.)— 34 


530  INFANTS  (Ch.  14 

proof,  he  is  not  responsible,  and  the  proof,  to  warrant  a  conviction, 
must  be  clear  and  convincing.88  It  has  been  held  that  a  conviction 
cannot  be  had  on  his  own  mere  naked  confession,39  but  there  are 
cases  holdig  the  contrary,  where  the  corpus  delicti  is  otherwise 
proved.40  When  a  child  has  reached  the  age  of  14,  he  is  presumed 
capable  of  committing  crime,41  and,  to  escape  responsibility,  he 
must  affirmatively  show  want  of  capacity.42  In  England,  a  boy  of 
10  years,  who,  after  killing  a  little  girl,  hid  her  body,  was  held  crim- 
inally liable,  because  the  circumstances  showed  a  mischievous  dis- 
cretion ; 4S  and  a  boy  of  8  years  was  hanged  for  arson.44  In  this 
country,  a  boy  of  12  has  been  hanged  for  murder.45 

There  are  some  exceptions  to  these  rules  in  case  of  certain  crimes 
of  omission,  such  as  negligently  permitting  felons  to  escape,  fail- 

38  Rex  v.  Owen,  4  Car.  &  P.  236:  State  v.  Davis,  104  Tenn.  501,  58  S.  W. 
122 ;  State  v.  Fisk,  15  N.  D.  589,  108  N.  W.  485,  11  Ann.  Gas.  1061 ;  Hampton 
v.  State,  1  Ala.  App.  156,  55  South.  1018;  Garner  v.  State,  97  Ark.  63,  132 
S.  W.  1010,  Ann.  Gas.  1912C,  1059;  Singleton  v.  State,  124  Ga.  136,  52  S.  E. 
156 ;  Angelo  v.  People,  96  111.  209,  36  Am.  Rep.  132 ;  Carr  v.  State,  24  Tex. 
App.  562,  7  S.  W.  328,  5  Am.  St.  Rep.  905 ;  State  v.  Barton,  71  Mo.  288 ;  Wus- 
nig  v.  State,  33  Tex.  651;  People  v.  Domenico,  45  Misc.  Rep.  309,  92  N.  Y. 
Supp.  390;  Harrison  v.  State,  72  Ark.  117,  78  S.  W.  763;  State  v.  Adams, 
76  Mo.  355 ;  State  v.  Fowler,  52  Iowa,  103,  2  N.  W.  983.  Assault  and  battery 
by  12  year  old  child,  State  v.  Goin,  9  Humph.  (Tenn.)  175.  See,  also,  State 
v.  Tice,  90  Mo.  112,  2  S.  W.  269 ;  State  v.  Pugh,  52  N.  C.  61 ;  Hill  v.  State. 
63  Ga.  578,  36  Am.  Rep.  120.  Sale  of  liquor  by  child,  Com.  v.  Mead,  10  Allen 
(Mass.)  398.  Burglary  by  a  child  undeji  13,  Simmons  v.  State,  50  Tex.  Cr. 
R.  527,  97  S.  W.  1052.  To  convict  an  infant  under  14  years  of  homicide,  it  is 
necessary  to  show  that  he  knew  or  understood  the  nature  and  consequence 
of  his  act  and  showed  design  and  malice  in  its  execution.  State  v.  Vineyard, 
81  W.  Va.  98,  93  S.  E.  1034. 

«»  State  v.  Aaron,  4  N.  J.  Law,  231,  7  Am.  Dec.  592 ;  People  v.  Domenico, 
45  Misc.  Rep.  309,  92  N.  Y?  Supp.  390.  But  see  Ex  parte  White,  50  Tex.  Cr. 
R.  473,  98  S.  W.  850. 

40  State  v.  Guild,  10  N.  J.  Law,  163,  18  Am.  Dec,  404.  And  see  Fost  Crown 
Law,  72;  State  v.  Bostick,  4  Har.  (Del.)  563. 

«i  Brown  v.  State,  47  Tex.  Cr.  R.  326,  83  S.  W.  378;  Neal  v.  State  (Tex.  Cr. 
App.)  101  S.  W.  212 ;  Gilchrist  v.  State,  100  Ark.  330,  140  S.  W.  260 ;   Hampton . 
v.  State,  1  Ala.  App.  156,  55  South.  1018;    Vinson  v.  State,  124  Ga.  19,  52 
S.  E.  79. 

42  Irby  v.  State,  32  Ga.  496;    State  v.  Thrailkill,  73  S.  C.  314,  53  S.  E.  482; 
Law  v.  Com.,  75  Va.  885,  40  Am.  Rep.  750.     His  own  testimony  that  he  did 
not  know  the  act  was  wrong  is  not  enough.     State  v.  Kluseman,  53  Minn. 
541,  55  N.  W.  741. 

43  York's  Case,  Fost.  Crown  Law,  70. 
**  Emlyn  on  1  Hale,  P.  C.  25. 

48  State  v.  Guild,  10  N.  J.  Law,  163,  18  Am.  Dec.  404.  And  see  State  v. 
Aaron,  4  N.  J.  Law,  231,  7  Am.  Dec.  592;  Godfrey  v.  State,  31  Ala.  323,  70 
Am,  Dec,  494;  Martin  v.  State,  90  Ala.  602,  8  South.  858,  24  Am.  St.  Rep.  844. 


§§  223-224)        RESPONSIBILITY  OF   INFANTS   FOR   CRIME  531 

ure  to  repair  highways,  etc.;  infants  being  held  exempt  from  re- 
sponsibility in  such  case  until  they  reach  the  age  of  21  years,  on 
the  ground  that  until  then,  not  having  command  of  their  fortune, 
they  are  unable  to  do  these  acts  as  required  by  law.46 

At  the  common  law  a  boy  who  has  not  attained  the  age  of  14 
years  is  conclusively  presumed  not  to  have  sufficient  physical  ca- 
pacity to  commit,  the  crime  of  rape.47  Some  of  the  courts  in  this 
country,  while  they  recognize  the  presumption,  hold  that  it  is  not  a 
conclusive  presumption,  but  one  that  may  be  rebutted  by  proof  of 
capacity.48  A  boy  under  the  age  of  14  may  be  guilty  as  principal 
in  the  second  degree  or  accessory  to  the  crime  committed  by  an- 
other, if  of  sufficient  mental  capacity  to  be  responsible  for  hte 
crimes,  though  lacking  in  physical  capacity  to  commit  the  crime 
himself.49 

4 «  4  Bl.  Comm.  22.  A  minor  who  has  not  been  emancipated  or  is  not  pos- 
sessed of  property  cannot  be  held  criminally  liable  for  failure  to  support  his 
wife.  People  v.  Todd,  61  Mich.  234,  28  N.  W.  79.  A  minor  under  16  cannot 
be  convicted  of  vagrancy.  Johnson  v.  State,  124  Ga.  421,  52  S.  E.  737.  Nor 
can  a  minor  be  convicted  of  selling  mortgaged  goods,  as  he  has  a  right  to  dis- 
affirm the  mortgage,  and  in  effect  does  so  by  the  sale.  Jones  v.  State,  31 
Tex.  Or.  R.  252,  20  S.  W.  578.  But  he  may  be  held  liable  in  bastardy  pro- 
ceedings. Chandler  v.  Com.,  4  Mete.  (Ky.)  66. 

47  Clark,  Cont.  191 ;  Reg.  v.  Philips,  8  Car.  &  P.  736 ;  Com.  v.  Green,  2 
Pick.  (Mass.)  380;  McKinny  v.  State,  29  Fla.  565,  10  South.  732,  30  Am.  St. 
Rep.  140. 

"Williams  v.  State,  14  Ohio,  222,  45  Am.  Dec.  536;  People  v.  Randolph, 
2  Park.  Cr.  R,  (N.  Y.)  174;  Heilman  v.  Coin.,  84  Ky.  457,  1  S.  W.  731,  4 
Am.  St.  Rep.  207;  Wagoner  v.  State,  5  Lea  (Tenn.)  352,  40  Am.  Rep.  36; 
State  v.  Jones,  39  La.  Ann.  935,  3  South.  57. 

*»  1  Hale,  P.  C.  630;  Law  v.  Com.,  75  Va.  885,  40  Am.  Rep.  750. 


532  PERSONS  NON  COMPOTES  MENTIS  AND  ALIENS  CCh.  15 

CHAPTER  XV 

PERSONS  NON  COMPOTES  MENTIS  AND  ALIENS 

225-246.  Persons   Non   Compotes   Mentis. 

225.  In  General. 

226.  Inquisition. 
227-228.  Guardianship. 

229.  Custody  and  Support. 

230-234.  Contracts. 
231-234.  Ratification  and  Avoidance  of  Contracts. 

235.  Liability    for   Torts. 

236-239.  Responsibility   for   Crimes. 

240-241.  Capacity   to    Make   a   WilL 

242-246.  Drunken  Persons. 
242-243.  Contracts. 

244.  Liability  for  Torts. 

245.  Responsibility   for    Crimes. 

246.  Capacity  to  Make  a  Will, 
247-252.    Aliens, 

PERSONS  NON  COMPOTES  MENTIS 

225.  A  person  is  non  compos  mentis  who  is  of  unsound  mind ;  the 
term  being  a  generic  one,  and  including  all  forms  of  insan- 
ity. 

Insanity  is  "a  manifestation  of  disease  of  the  brain,  characterized 
by  a  general  or  partial  derangement  of  one  or  more  faculties  of  the 
mind,  and  in  which,  while  consciousness  is  not  abolished,  mental 
freedom  is  perverted,  weakened,  or  destroyed."  *  The  term  is  used 
broadly  in  the  law,  to  denote  all  kinds  of  mental  alienation,  and  as 
synonymous  with  the  phrase  "non  compos  mentis."  Coke  enumer- 
ates four  classes  of  persons  who  are  deemed  in  law  to  be  insane 
or  non  compos  mentis,  namely:  (1)  An  idiot  or  fool  natural — that 
is,  a  person  who  has  been  of  unsound  mind  since  his  birth;  (2) 
he  who  was  of  good  and  sound  mind  and  memory,  but,  by  the  act 
of  God,  has  lost  it;  (3)  a  lunatic,  lunaticus,  qui  gaudet  in  lucidis 
intervallis,  who  sometimes  is  of  good  sound  mind  and  memdry, 
and  sometimes  non  compos  mentis;  and  (4)  one  who  is  non  com- 

i  Black,  Law  Diet.  tit.  "Insanity" ;  Ham.  Nerv.  Sys.  332.  A  deaf  mute  is 
not  presumed  to  be  an  idiot.  Alexier  v.  Matzke,  151  Mich.  36,  115  N.  W.  251, 
123  Am.  St  Rep.  255,  14  Ann.  Gas.  52. 


§  225)  .    PERSONS  NON   COMPOTES   MENTIS  533 

pos  mentis  by  his  own  act,  as  a  drunkard.2  The  last  class  will  be 
considered  separately,  for  drunkenness  is  not  generally  understood 
as  a  phase  of  insanity  in  law,  and  in  many  respects  the  rules  relat' 
ing  to  insanity  do  not  apply  in  the  case  of  drunkenness. 

The  status  of  an  insane  person  is  peculiar.  As  an  incompetent 
person  he  is  subject  to  the  control  of,  and  entitled  to  protection  by, 
the  state.  As  he  is  lacking  in  mind,  he  can  do  no  act  which  requires 
an  intelligent  mental  operation.3  In  the  following  sections  we  shall 
consider  his  capacity  to  contract,  his  capacity  to  make  a  will,  his 
liability  for  torts,  and  his  responsibility  for  crime. 

2  Black,  Law  Diet.  tit.  "Non  Compos  Mentis" ;   Co.  Litt.  247a ;  In  re  Bever- 
ley,  4  Coke,  124;    Johnson  v.  Phifer,  6  Neb.  404;    Somers  v.  Pumphrey,  24 
Ind.  231.     Drunkenness  is  not  in  itself,  necessarily  a  species   of  insanity. 
Searles  v.  Northwestern  Mut.  Life  Ins.  Co.  of  Milwaukee,  148  Iowa,  65,  126 
N.  W.  801,  29  L-.  R,  A.  (N.  S.)  405.     "The  most  common  forms  in  which  it 
[insanity]    presents   itself  are  those   of   mania,   monomania,    and   dementia. 
All  these  imply  a  derangement  of  the  faculties  of  the  mind  from  their  normal 
or  natural  condition.     Idiocy,   which  is  usually   classed  under  the  general 
designation  of  'insanity,'  is  more  properly  the  absence  of  mind  than  the  de- 
rangement of  its  faculties.     It  is  congenital — that  is,  existing  in  birth — and 
consists  not  in  the  loss  or  derangement  of  the  mental  powers,  but  in  the 
destitution  of  powers  never  possessed.    Mania  is  that  form  of  insanity  where 
the  mental  derangement  Is  accompanied  with  more  or  less  of  excitement. 
Sometimes  the  excitement  amounts  to  a  fury.    The  individual  in  such  cases 
is  subject  to  hallucinations  and  illusions.     He  is  impressed  with  the  reality 
of  events  when  have  never  occurred,  and  of  things  which  do  not  exist,  and 
nets  more  or  less  in  conformity  with  his  belief  in  these  particulars.     The 
mania  may  be  general,  and  affect  all  or  most  of  the  operations  of  the  mind ; 
or  it  may  be  partial,  and  be  confined  to  particular  subjects.     In  the  latter 
case  it  is  generally  termed  'monomania.'    Dementia  is  that  form  of  insanity 
where  the  mental  derangement  is  accompanied  with  a  general  enfeeblement 
of  the  faculties.     It  is  characterized  by  forgetfulness,  inability  to  follow  any 
train  of  thought  and  indifference  to  passing  events.    'In  dementia,'  says  Bay, 
a  celebrated  writer  on  medical  jurisprudence,  'the  mind  is  susceptible  of  only 
feeble  and  transitory  impressions,  and  manifests  but  little  reflection  even 
upon  these.    They  come  and  go  without  leaving  any  trace  of  their  presence 
behind  them.     The  attention  is  incapable  of  more  than  a  momentary  effort, 
one  idea  succeeding  another  with  but  little  connection  or  coherence.     The 
mind  has  lost  the  power  of  comparison,  and  abstract  ideas  are  utterly  be- 
yond its  grasp.    The  memory  is  peculiarly  weak,  events  the  most  recent  and 
most  nearly  connected  with   the   individual   being  rapidly   forgotten.     The 
language  of  the  demented  is  not  only  incoherent,  but  they  are  much  inclined 
to  repeat  isolated  words  and  phrases  without  the  slightest  meaning.'"     Per 
Field,  C.  J.,  in  Hall  v.  Unger,  Fed.  Cas.  No.  5,949. 

3  An  insane  person  has  no  power  to  appoint  an  agent.    Amos  v.  American 
Trust  &  Savings  Bank,  125  111.  App.  91,  affirmed  221  111.  100,  77  N.  E.  462; 
Gillet  v.  Shaw,  117  Md.  508,  83  Atl.  394,  42  L.  R.  A.  (N.  S.)  87. 


534  PERSONS  NON   COMPOTES  MENTIS  AND  ALIENS  (Ch.  15 

INQUISITION 

226.  The  mode  of  ascertaining  the  insanity  of  a  person  is  by  a  com- 
mission in  lunacy  in  the  nature  of  a  writ  de  lunatico  in- 
quirendo. 

In  England  commissions  in  the  nature  of  writs  de  lunatico  inqui- 
rendo  issue  in  chancery  on  the  petition  of  the  Attorney  General  or 
a  friend  of  the  insane  person.  The  practice  is  substantially  trie 
same  in  American  courts  of  chancery  or  probate  having  insanity 
jurisdiction.4  The  purpose  of  the  commission  is  to  determine,  first, 
whether  the  subject  of  the  inquiry  is  a  lunatic  or  not,  and,  if  he  is 
found  to  be  a  lunatic,  then  to  provide  for  the  safeguarding  of  both 
his  person  and  his  property.5  The  proceeding  may  be  instituted 
by  a  relative  of  the  person,6  the  commonwealth's  attorney,7  but  not 
by  a  mere  stranger,8  unless  authorized  by  statute.9 

The  inquisition  is  conclusive  of  the  insanity  of  the  person  at  the 
time  of  the  finding,10  but  not  of  the  existence  of  insanity  at  a  later 

*  Burke  v.  Wheaton,  3  Cranch,  C.  C.  341,  Fed.  Cas.  No.  2,164 ;  Halett  v. 
Patrick,  49  Cal.  590 ;  Hogg  v.  Board  of  Com'rs  of  San  Miiguel  County,  57  Colo. 
463,  141  Pac.  478 ;  Ex  parte  Scudamore,  55  Fla.  211,  46  South.  279 ;  Ex  pane 
Zorn,  241  Mo.  2G7,  145  S.  W.  62;  Cox  v.  Osage  County,  103  Mo.  385,  15  S. 
W.  763.  It  is  held  in  some  states  that  the  court  has  no  jurisdiction  where 
the  insane  person  is  a  nonresident,  though  temporarily  within  the  juris- 
diction of  the  court.  State  v.  Servier,  136  La.  45,  66  South.  392;  Laird 
v.  Dickirson,  241  111.  380,  89  N.  E.  795.  But  in  Chaloner  v.  Sherman, 
215  Fed.  867.  132  C.  C.  A.  96,  affirmed  in  242  U.  S.  455,  37  Sup.  Ct.  136, 
61  I*  Ed.  427,  it  was  held  that,  where  the  insane  person  is  physically 
present  in  the  state,  the  court  has  jurisdiction,  though  he  is  a  resident 
of  another  state.  In  Hundley  v.  Sumrall,  144  Ky.  73,  137  S.  W.  842,  it 
was  held  that,  where  an  insane  person  confined  in  a  sanitarium  in  another 
state  had  property  in  Kentucky,  the  courts  of  the  latter  state  had  jurisdic- 
tion to  appoint  a  committee  to  take  charge  of  the  estate.  And  see  Carter 
v.  Bolster,  122  Mo.  App.  135,  98  S.  W.  105. 

oin  re  Misselwitz,  177  Pa.  359,  35  Atl.  722. 

« Treasurer  of  Insane  Hospital  v.  Belgrade,  35  Me.  497 ;  State  ex  rel. 
Gardiner  v.  Dickman,  175  Mo.  App.  543,  157  S.  W.  1012;  In  re  Hannah,  76 
N.  J.  Eq.  237,  73  Atl.  849. 

7  Coleman  v.  Commissioners  of  Lunatic  Asylum,  6  B.  Mon.  (Ky.)  239. 

s  In  re  Covenhoven,  1  N.  J.  Eq.  19. 

»  Jessup  v.  Jessup,  7  Ind.  App.  573,  34  N.  E.  1017 ;  Gerke  v.  Colonial  Trust 
Co.,  117  Md.  579,  83  Atl.  1092 ;  Baum  v.  Greenwald,  95  Miss.  765,  49  South. 
836;  In  re  Burke,  125  App.  Div.  889,  110  N.  Y.  Supp.  1004. 

10  Soules  v.  Robinson,  158  Ind.  97,  62  N.  E.  999,  92  Am.  St.  Rep.  301; 
Logan  v.  Vanarsdall  (Ky.)  110  S.  W.  321.  It  is,  however,  questionable  wheth- 
er the  adjudication  is  conclusive  as  against  strangers  to  the  proceedings. 


§§  227-228)  GUARDIANSHIP  535 

time,11  though  it  does  substitute  for  the  general  presumption  of 
sanity  a  presumption  of  insanity.12  The  adjudication  is  not  conclu- 
sive as  to  the  existence  of  insanity  prior  to  the  time  of  the  find- 
ing;13 but,  if  the  inquiry  covered  the  anterior  period,  it  raises  a 
presumption  of  prior  insanity.14 


GUARDIANSHIP 

227.  The  guardianship  of  persons  non  compotes  mentis  is  provid- 

ed for  by  statute  in  most  jurisdictions.  Generally  the  pro- 
bate or  some  similar  court  is  given  the  power  to  appoint  a 
guardian  or  committee  of  the  persons  and  estates  of  insane 
persons;  and  in  some  states  the  power  is  extended  to  in- 
clude drunkards  or  spendthrifts. 

228.  The  guardianship  of  persons  non  compotes  mentis  is  governed 

by  substantially  the  same  rules  of  law  as  the  guardianship 
of  infants. 

The  crown  as  parens  patrias  had  authority  over  the  care  and  cus- 
tody of  infants,  but  this  authority  did  not  originally  extend  to  per- 
sons non  compotes  mentis.  It  was,  however,  conferred  on  the 
crown  by  Parliament,  and  intrusted  under  the  sovereign's  sign 
manual  to  the  Lord  Chancellor.15  In  this  country  the  guardianship 
of  persons  non  compotes  mentis  is  regulated  by  statute,  jurisdiction 
being  generally  conferred  on  the  probate  or  other  similar  court. 
Guardianship  over  spendthrifts  was  unknown  at  common  law,  but 

Hill  v.  Day,  34  N.  J.  Eq.  150 ;    Slaughter  v.  Heath,  127  Ga.  747,  57  S.  E.  69, 
27  L.   R.  A.   (N.    S.)   1. 

11  Lucas  v.  Parsons,  23  Ga.  267;    Clark's  Ex'r  v.  Trail's  Adm'rs,  1  Mete. 
(Ky.)  35 ;  Johnson's  Committee  v.  Mitchell,  146  Ky.  382,  142  S.  W.  675.    An  in- 
quest of  lunacy  is  conclusive  as  to  subsequent  occurrences  only  when  made  so 
by  statute.    In  re  Weedman's  Estate,  254  111.  504,  48  N.  E.  956. 

12  Redden  v.  Baker,  86  Ind.  191;    In  re  Nelson,  148  Iowa,  118,  126  N.  W. 
973,  Ann.  Gas.  1912B,  974;    Ex  parte  McWilliams,  254  Mo.  512,  164  S.  W. 
221;    Mutual  Life  Ins.  Co.  of  New  York  v.  Wiswell,  56  Kan.  765,  44  Pac. 
996,  35  L.  R,  A.  258. 

is 'Shirley  v.  Taylor's  Heirs,  5  B.  Mon.  (Ky.)  99;  Sharbero  v.  Miller,  72 
N.  J.  Eq.  248,  65  Atl.  472,  affirmed  74  N.  J.  Eq.  453,  77  Atl.  1088 ;  Uecker  v. 
Zuercher,  54  Tex.  Civ.  App.  289,  118  S.  W.  149. 

i*  Small  v.  Champeny,  102  Wis.  61,  78  N.  W.  407;  Hughes  v.  Jones,  116 
N.  Y.  67.  22  N.  E.  446,  5  L.  R.  A.  632,  15  Am.  St.  Rep.  386. 

"The  Legislature  is  the  successor  of  the  crown  of  England  as  parens 
patrise  in  the  case  of  idiots  and  lunatics.  In  re  Thaw,  138  App.  Div.  91,  122 
N.  Y.  Supp.  970. 


536  PERSONS  NON  COMPOTES  MENTIS  AND  ALIENS  (Ch.  15 

is  not  uncommon  under  statutes  in  this  country.  In  some  juris- 
dictions a  person  to  whom  the  court  has  intrusted  the  guardianship 
of  an  insane  person  or  spendthrift  is  called  a  "guardian,"  while  in 
others  he  is  called  a  "committee."  The  principles  and  rules  of  law 
governing  the  relation  of  guardian  and  insane  ward  are  substantial- 
ly the  same  as  those  which  govern  the  relation  of  guardian  and  in- 
fant ward.  These  have  already  been  explained.16  The  effect  of 
guardianship  on  the  capacity  of  the  ward  to  contract  and  to  make  a 
will  will  be  considered  in  the  following  sections.17 

CUSTODY  AND  SUPPORT 

229.  The  state  has  power  through  the  courts  to  control  and  regu- 
late the  custody  of  insane  persons,  to  provide  for  their 
support,  and  to  enforce  the  liability  therefor. 

While  the  guardian  of  an  insane  person  has  general  custody  of 
the  person,  and  may  care  for  and  control  him  in  ordinary  circum- 
stances,18 this  power  is  subject  to  the  general  authority  of  the  state, 
which  may,  if  the  public  welfare  or  the  welfare  of  the  incompetent 
demands  it,  commit  the  insane  person  to  a  proper  asylum,19  or  in 
a  proper  case  direct  the  removal  of  the  person  from  the  state.20 

Generally  the  relatives  of  an  indigent  insane  person  are  charged 
by  statute  with  his  support,21  or,  if  the  insane  person  has  a  guard- 
ian, that  duty  devolves  on  him.22  By  statute  the  duty  of  support- 


i«Ante,  p.  304.  1T  Post,  pp. -542,  552. 

is  State  v.  Lawrence,  86  Minn.  310,  90  N.  W.  769,  58  L.  R,  A.  931;  Ander- 
son v.  Anderson's  Estate,  42  Vt.  350,  1  Am.  Rep.  334. 

i»  Brickway's  Case,  80  Pa.  65;  Board  of  Com'rs  of  Madison  County  v. 
Moore.  161  Ind.  426,  68  N.  E.  905 ;  Ex  parte  Hareourt,  27  Cal.  App.  642, 
150  Pac.  1001;  Baum  v.  Greenwald,  95  Miss.  765,  49  South.  836;  Ex  parte 
Dagley,  35  Okl.  180,  128  Pac.  699,  44  L.  R.  A.  (N.  S.)  389;  Ex  parte  Allen, 
82  Vt.  365,  73  Atl.  1078,  26  L.  R,  A.  (N.  S.)  232 ;  In  re  Doyle,  17  R,  I.  37,  1!) 
Atl.  1083. 

zoparsee  Merchant's  Case,  11  Abb.  Prac.  N.   S.  (N.   Y.)  209. 

21  Watt  v.  Smith,  89  Cal.  602,  26  Pac.  1071;    Wapello  County  v.  Eikelperg, 
140  Iowa,  736,  117  N.  W.  978;    Minnehaha  County  v.  Boyce,  30  S.  D.  226, 
138  N.  W.  287 ;    Richardson  v.  Stuesser,  125  Wis.  66,  103  N.  W.  261,  69  L.  R. 
A.  829,  4  Ann.  Gas.  784. 

22  Creagh  v.  Tunstall,  98  Ala.  249,  12   South.  713.     Hte  Is  not,  however, 
personally  liable,  unless  he  makes  himself  so  by  contract.    Merrimack  Coun- 
ty v.  Kimball,  62  N.  H.  67.    And  see  In  re  Clanton's  Estate  and  Guardian- 
ship, 171  Cal.  381,  153  Pac.  459. 


§  230)  INSANE  PERSONS — CONTRACTS  537 

ing  insane  persons  is  under  certain  conditions  imposed  on  the  pub- 
lic authorities.28 

CONTRACTS  OF  INSANE  PERSONS 

230.  As  a  general  rule,  a  contract  entered  into  by  a  person  when  he 
is  so  insane  as  to  be  incapable  of  understanding  its  nature 
and  effect  is  voidable  at  his  option.  The  rule  is  subject, 
however,  to  the  following  exceptions : 

(a)  The  following  contracts  are  valid  and  binding : 

(1)  Contracts  created  by  law,  or  quasi  contracts. 

(2)  Contracts  for  necessaries  furnished  to  himself,  or,  by  the 

weight  of  authority,  to  his  wife  or  children. 

(3)  In  most,  but  not  all,  jurisdictions,  where  the  other  party 

to  the  contract  acted  fairly  and  in  good  faith,  without 
actual  or  constructive  knowledge  of  the  other's  insan- 
ity, and  the  contract  has  been  so  far  executed  that  he 
cannot  be  placed  in  statu  quo. 

(b)  The  following  contracts  are  absolutely  void: 

(1)  In  most,  but  not  all,  jurisdictions,  contracts  by  a  person 

who  has  been  judicially  declared  insane,  and  placed 
under  guardianship. 

(2)  In  a  few  jurisdictions,  deeds  and  powers  of  attorney  or 

other  appointments  of  an  agent. 

It  was  at  one  time  said  to  be  a  maxim  of  the  common  law  that 
no  man  of  full  age  should  be  allowed  by  plea  to  stultify  himself 
by  pleading  insanity,  and  thereby  avoid  his  deed  or  contract ; 2*  but 
if  this  was  ever  the  law,  which  is  very  doubtful,25  it  is  so  no  longer. 
It  is  universally  held  that  a  contract  made  by  a  person  who  is  so 
lacking  in  mental  capacity  from  defect  or  disease  of  the  mind  as 
to  be  incapable  of  understanding  its  nature  and  effect  is,  as  a  gen- 
eral rule,  voidable,  at  least  where  the  other  party  knew  of  his  con- 
dition, and  in  most  cases  whether  there  was  such  knowledge  or 

23  The  state  has  the  common-law  duty  of  the  care  and  custody  of  idiots 
and  lunatics,  and  it  is  the  policy  of  the  state,  as  shown  by  its  statutes,  to 
appropriate  the  estates  of  such  persons  for  their  maintenance  before  they 
can  be  supported  by  the  public.  State  'v.  Ikey's  Estate,  84  Vt.  363,  79  Atl.  850, 
Ann.  Cas.  1913A,  575. 

2*  Veverley's  Case,  4  Coke,  123b;    Co.  Litt.  147;   2  Bl.  Comm.  292. 

ssFitzh.  Nat.  Brev.  202;  Yates  v.  Boen,  2  Strange,  1104;  Webster  v. 
Woodford,  3  Day  (Conn.)  90;  Mitchell  v.  Kingman,  5  Pick.  (Mass,)  431., 


538  PERSONS  NON  COMPOTES  MENTIS  AND  ALIENS  (Ch.  15 

not.2*  The  reason  is  that  a  contract  requires  the  assent  of  two 
minds,  and  an  insane  person  has  no  mind,  and  is  therefore  incapable 
of  assenting. 

It  makes  no  difference  what  the  form  of  the  insanity  may  be,  or 
what  caused  it.27  It  must  be  something  more  than  mere  weakness 
of  intellect,28  but  it  need  not  be  so  great  as  to  dethrone  reason,  or 
to  amount  to  an  entire  want  of  reason.29  It  must  be  such  as  to 
render  the  person  incapable  of  comprehending  the  subject  of  the 
contract,  and  its  nature  and  probable  consequences.80  If  the  party 
is  insane  at  times  only,  the  contract,  to  be  voidable,  must  have  been 
made  while  he  was  insane.  If  made  during  a  lucid  interval,  it  is 
binding.81  Permanent  insanity  need  not  be  shown.  It  is  enough 
if  insanity  existed  at  the  time  the  contract  was  made,  though  the 
party  may  have  been  perfectly  sane  both  before  and  afterwards.82 

2  «  Webster  v.  Woodford,  3  Day  (Conn.)  90:  Mitchell  v.  Kingman,  5  Pick. 
(Mass.)  431;  Rice  v.  Peet.  15  Johns.  (N.  Y.)  503;  Morris  v.  Clay,  53  N.  C. 
216;  Burnham  v.  Mitchell,  34  Wis.  117;  Clark,  Cont.  264,  and  cases  there 
cited. 

27  idiocy,  Burnhara  v.  Kidwell,  113  111.  425;    Ball  v.  Mannin,  3  Bligh  (N. 
S.)  1 ;   F.well,  Lead.  Cas.  5S4.    Lunacy,  Jackson  v.  Gumaer,  2  Cow.  (N.  Y.)  552. 
Senile  dementia,  Stone  v.  Wllbern,  83  111.  105;    Jeneson  v.  Jeneson,  66  111. 
259;   Guild  v.  Hull,  127  111.  523,  20  N.  E.  665;   Lynch  v.  Doran,  95  Mich.  395, 
54  N.  W.  882;    Arnold  v.  Whitcomb,  S3  Mich.  19,  46  N.  W.  1029;    Keeble  v. 
Cummins,  5  Hayw.  (Tenn.)  43;    Clark,  Cont  264,  265,  and  cases  there  cited. 

28  Dennett  v.  Dennett,  44  N.  H.  531,  84  Am.  Dec.  97;    Saffer  v.  Mast,  223 
111.  108,   79  N.  E.  32;    Miller  v.   Craig,  36  111.  110;    Stone  v.  Wilbern,   83 
111.  105;    Guild  v.  Hull,  127  111.  523,  20  N.  E.  665;    Simonton  v.  Bacon,  49 
Miss.  582;    Lawrence  v.  Willis,  75  N.  O.  471;    Farnam  v.  Brooks,  9  Pick. 
(Mass.)  212;   West  v.  Russell,  48  Mich.  74,  11  N.  W.  812;   Davis  v.  Phillips, 
85  Mich.  198,  48  N.  W.  513 ;    Clark,  Cont  265,  and  cases  there  cited.     So, 
where  a  person  is  not  entirely  without  understanding,   and  makes  a  con- 
tract, comprehending  its  full  force  and  effect,  and  no  fraud  or  deceit  has 
been  practiced  upon  him,  such  a  contract  will  not  be  rescinded.     Ratliff  v. 
Baltzer's  Adm'r,  13  Idaho,  152,  89  Pac.  71. 

2»  Ball  v.  Mannin,  3  Bligh  (N.  S.)  1;   Ewell,  Lead.  Cas.  534. 

»o  Dennett  v.  Dennett  44  N.  H.  531,  84  Am.  Dec.  97;  Swartwood  v.  Chance, 
131  Iowa,  714,  109  N.  W.  297 ;  Bond  v.  Bond,  7  Allen  (Mass.)  1 ;  Brown  v. 
Brown,  108  Mass.  386;  Lilly  v.  Waggoner,  27  111.  396;  Baldwin  v.  Dunton, 
40  111.  188;  Titcomb  v.  Vantyle,  84  111.  371;  Perry  v.  Pearson,  135  111.  218, 
25  N.  E.  636;  Burnham  v.  Mitchell,  34  Wls.  136;  Clark,  Oont  266,  267,  and1 
cases  there  cited. 

si  Hall  v.  Warren,  9  Ves..  605;  Critchfleld  v.  Easterday,  26  App.  D.  C.  89; 
Lilly  v.  Waggoner,  27  111.  395 ;  McCormick  v.  Littler,  85  111.  62,  28  Am.  Rep. 
610;  Beckwith  v.  Butler,  1  Wash.  (Va.)  224;  Carpenter  v.  Carpenter,  8 
Bush  (Ky.)  283 ;  Staples  v.  Wellington,  58  Me.  453 ;  Clark,  Cont  266.  As  to 
burden  of  proof  in  such  cases,  see  cases  cited  in  Clark,  Cont.  266,  note  201. 

32  Curtis  v.  Brownell,  42  Mich.  165,  3  X.  W.  936;  Peaslee  v.  Robbins,  3 
Mete.  (Mass.)  164;  Jenners  v.  Howard,  6  Blackf.  (Ind.)  240. 


§    230)  INSANE   PERSONS — CONTRACTS  539 

Neither  need  it  be  shown  that  the  insanity  was  general.  A  person 
who  is  laboring  under  an  insane  delusion  is  incapable  of  making 
a  contract  if  his  delusion  is  so  connected  with  the  subject-matter  of 
the  particular  contract  as  to  prevent  him  from  comprehending  its 
nature  and  probable  consequences.  If  such  was  his  condition,  he 
may  avoid  the  contract,  though  he  may  have  been  perfectly  sane 
in  respect  to  other  matters,  and  might  have  been  able  to  make  a 
binding  contract  in  reference  to  some  other  subject-matter.33  The 
delusion  must  have  been  so  connected  with  the  subject-matter  of 
the  contract  to  avoid  it.3* 

Whether  Contracts  are  Void  or  Voidable 

It  has  been  held  by  some  courts  that  the  deed  of  an  insane  per- 
son,35 or  a  power  of  attorney  or  other  appointment  of  an  agent,88 
or  the  transfer  of  a  note,37  is  absolutely  void  and  of  no  effect  what- 
ever. In  most  states  however,  no  distinction  is  made  in  this  respect 
between  the  deed  of  an  infant  and  that  of  an  insane  person,  or  be- 
tween the  deed  of  an  insane  person  and  any  other  kind  of  contract; 
and  it  is  held  to  be  simply  voidable.38  As  a  general  rule,  almost 

ss  Bond  v.  Bond,  7  Allen  (Mass.)  1;  Riggs  v.  American  Tract  Soc.,  95  N.  Y. 
503 ;  Dennett  v.  Dennett,  44  N.  H.  531,  84  Am.  Dec.  97 ;  Searle  v.  Galbraith, 
73  111.  269;  Alston  v.  Boyd,  6  Humph.  (Tenn.)  504;  Samuel  v.  Marshall,  3 
Leigh  (Va.)  567 ;  Boyce's  Adm'r  v.  Smith,  9  Grat.  (Va.)  704,  60  Am.  Dec.  313 ; 
West  v.  Russell,  48  Mich.  74,  11  N.  W.  812. 

34  Boyce's  Adm'r  v.  Smith,  9  Grat.  (Va.)  704,  60  Am.  Dec.  313. 

s  5  Van  Deusen  v.  Sweet,  51  N.  Y.  378;  Rogers  v.  Blackwell,  49  Mich.  192, 
13  N.  W.  512;  Lewis  v.  Alston,  176  Ala.  271,  58  South.  278;  McEvoy  v. 
Tucker,  115  Ark.  430,  171  S.  W.  888 ;  Bowman  v.  Wade,  54  Or.  347,  103  Pac, 
72;  In  re  Desilver's  Estate,  5  Rawle  (Pa.)  Ill,  28  Am.  Dec.  645;  Farley  v. 
Parker,  6  Or.  105,  25  Am.  Rep.  504;  Elder  v.  Schumacher,  18  Colo.  433,  33 
Pac.  175. 

se  Dexter  v.  Hall,  15  Wall.  9,  21  L.  Ed.  73;  Amos  v.  American  Trust  &  Sav- 
ings Bank,  125  111.  App.  91,  decree  affirmed  221  111.  100,  77  N.  E.  462 ;  Daily 
Telegraph  Newspaper  Co.  v.  McLaughlin,  73  Law  J.  P.  O.  95,  [1904]  App.  Gas. 
776,  91  Law  T.  233,  20  Times  Law  R.  674. 

37  Walker  v.  Winn.  142  Ala.  560,  39  South.  12,  110  Am.  St.  Rep.  50,  4  Ann. 
Gas.  537. 

ssHovey  v.  Hobson,  53  Me.  451,  89  Am.  Dec.  705;  Ratlin8  v.  Baltzer's 
Adm'r,  13  Idaho,  152,  S9  Pac.  71;  Do  Vries  v.  Crofoot,  148  Mich.  183,  111 
N.  W.  775 ;  Wait  v.  Maxwell,  5  Pick.  (Mass.)  217,  16  Am.  Dec.  391 ;  Vogel  v. 
Zuercher  (Tex.  Civ.  App.)  135  S.  W.  737;  Beeson  v.  Smith,  149  N.  C.  142,  62  S. 
E.  888;  Smith  v.  Ryan,  191  N.  Y.  452,  84  N.  E.  402,  19  L.  R.  A.  (N.  S.)  461,  123 
Am.  St.  Rep.  609,  14  Ann.  Gas.  505.  reversing  116  App.  Div.  397,  101  X.  Y. 
Supp.  1011;  Wolcott  v.  Connecticut  General  Life  Ins.  Co.,  137  Mich.  309, 
100  N.  W.  569;  Key's  Lessee  v.  Davis,  1  Md.  32;  Gibson  v.  Soper,  6  Gray 
(Mass.)  279,  66  Am.  Dec.  414;  Allis  v.  Billings.  6  Mete.  (Mass.)  415,  39  Am. 
Dec.  744;  Evans  v.  Horan,  52  Md.  602;  Burnham  v.  Kidwell,  113  111.  425; 


540  PERSONS  NON  COMPOTES  MENTIS  AND  ALIENS  (Ch.  15 

universally  recognized,  all  his  contracts  other  than  such  as  the 
law  holds  binding  upon  him  are  not  void,  but  simply  voidable  at  his 
option."  They  are  binding  on  the  sane  party  if  the  insane  party 
chooses  to  hold  him.40 

Valid  Contracts — Quasi  Contracts 

Some  contracts  are  binding  upon  an  insane  person.  As  in  the 
case  of  an  infant,  the  rule  that  a  person  may  avoid  a  contract  made 
by  him  while  insane  does  not  apply  to  contracts  created  by  law,  for 
in  these  contracts  the  obligation  is  imposed  by  law  without  regard 
to  the  consent  of  the  party  bound.41 

Same — Necessaries 

Nor  does  the  rule  apply  to  the  contracts  of  an  insane  person  for 
necessaries  furnished  to  him  or  his  wife,  or,  by  the  weight  of  au- 
thority, to  his  children.42  The  rules  as  to  necessaries  are  substan- 
tially the  same  as  in  the  case  of  an  infant's  contracts  for  necessaries, 
except,  it  seems,  that,  unlike  an  infant,  an  insane  person  is  liable 
for  labor  and  materials  furnished  for  the  necessary  preservation 
of  his  estate.48  In  all  cases,  to  render  the  insane  person  liable,  the 
credit  must  have  been  given  to  him,  and  not  to  some  third  person. 
If  it  is  otherwise,  no  contract  will  be  implied.44  The  fact  that  the 

Snowman  v.  Herrlck.  Ill  Me.  587,  90  Atl.  479 ;  Green  v.  Hulse,  57  Colo.  238, 
142  Pac.  416;  Jordan  v.  Kirkpatrick,  159  111.  App.  231,  affirmed  251  111. 
116,  95  N.  E.  1079;  Eaton  v.  Eaton,  37  N.  J.  Law,  108,  18  Am.  Rep.  716; 
Boyer  v.  Berryman.  123  Ind.  451,  24  N.  E.  249;  Somers  v.  Pumphrey,  24 
Ind.  234;  Breckenrldge's  Heirs  v.  Ormsby,  1  J.  J.  Marsh.  (Ky.)  245,  19- 
Am.  Dec.  71;  Allen  v.  Berryhill,  27  Iowa,  534,  1  Am.  Rep.  309. 

3»  See  cases  cited  in  the  preceding  note.  And  see,  also,  Carrier  v.  Sears, 
4  Allen  (Mass.)  336,  81  Am.  Dec.  707;  Chew  v.  Bank  of  Baltimore,  14  Md. 
318;  Burke  v.  Allen,  29  N.  H.  106,  61  Am.  Dec.  642;  Arnold  v.  Richmond 
Iron  Works,  1  Gray  (Mass.)  434;  Riley  v.  Carter,  76  Md.  581,  25  Atl.  667,  19  L. 
R.  A.  489,  35  Am.  St.  Rep.  443. 

40  Harmon  v.  Harmon  (C.  C.)  51  Fed.  113;    Allen  v.  Berryhill,  27  Iowa, 
534,  1  Am.  Rep.  309. 

41  Reando  v.  Misplay,  90  Mo.  251,  2  S.  W.  405,  59  Am.  Rep.  13. 

42  Read  v.  Legard,  6  Exch.  636;  State  Commission  in  Lunacy  v.  Eldridge, 
7  Cal.  App.  298,  94  Pac.  597,  600;  Key  v.  Harris,  116  Tenn.  161,  92  S.  W.  235,  S 
Ann.  Cas.  200;    Smith's  Committee  v.  Forsythe,  90  S.  W.  1075,  28  Ky.  Law 
Rep.  1034 ;  Hancock  v.  Haile  (Tex.  Civ.  App.)  171  S.  W.  1053 ;  Ratliff  v.  Balt- 
zer's  Adm'r,  13  Idaho,  152,  89  Pac.  71;  La  Rue  v.  Gilkyson,  4  Pa.  375,  45  Am. 
Dec.  700;  Richardson  v.  Strong,  35  N.  C.  106,  55  Am.  Dec,  430;  McCbrmick  v. 
Littler,  85  111.  62,  28  Am.  Rep.  610 ;   Van  Horn  v.  Hann,  39  N.  J.  Law,  207 ; 
Shaw  v.  Thompson,  16  Pick.  (Mass.)  198,  26  Am.  Dec.  655;   Sawyer  v.  Lufkin, 
56  Me.  308 ;  Sceva  v.  True,  53  N.  H.  627 ;  Clark,  Cont.  267. 

48  Williams  v.  Wentworth,  5  Beav.  325. 

4*  Massachusetts  General  Hospital  v.  Fairbanks,  129  Mass.  78,  37  Am.  Rep. 
303 ;  Id.,  132  Mass.  414. 


§  230)  INSANE  PERSONS — CONTRACTS  541 

party  has  been  judicially  declared  insane,  and  placed  under  guard- 
ianship, does  not  affect  the  question  of  his  liability  for  what  are  in 
fact  necessaries.45  The  liability  of  an  insane  person  for  necessaries, 
like  the  liability  of  an  infant,  is  not  a  strictly  contractual  obligation. 
It  is  imposed  by  law,  and  is  quasi  contractual.48 
Same — Ignorance  of  Insanity  and  Good  Faith  of  the  Other  Party 

By  the  weight  of  actual  decision,  where  a  contract  with  an  insane 
person  has  been  executed  in  part,  and  the  other  party,  cannot  be 
placed  in  statu  quo,  it  will  be  enforced,  unless  it  is  shown  that  he 
did  not  act  in  good  faith,  or  that  he  knew  of  the  other's  condition. 
The  leading  case  holding  this  doctrine  is  Molton  v.  Camroux,47  an 
English  case.  In  this  case  an  insane  person  had  purchased  annui- 
ties of  a  society,  paid  the  money,  and  died,  whereupon  his  admin- 
istratrix sued  the  society  to  recover  back  the  money  paid  it,  on  the 
ground  that  the  contract  was  void.  The  jury  found  that  at  the  time 
of  the  contract  the  deceased  was  insane,  but  that  there  was  nothing 
to  indicate  this  to  the  society,  and  that  the  transaction  was  in  good 
faith ;  and  it  was  held  that  the  money  could  not  be  recovered. 
"The  modern  cases  show,"  it  was  said,  "that  when  that  state  of  mind 
was  unknown  to  the  other  contracting  party,  and  no  advantage  was 
taken  of  the  lunatic,  the  defense  cannot  prevail,  especially  where 
the  contract  is  not  merely  executory,  but  executed  in  whole  or  in 
part,  and  the  parties  cannot  be  restored  to  their  original  posi- 
tions." 48  If  the  lunatic  has  received  no  benefit  under  the  contract, 

45  McCrillis  v.  Bartlett,  8  N.  H.  569;  Sawyer  v.  Lufkin,  56  Me.  308;  Reando 
v.  Misplay,  90  Mo.  251,  2  S.  W.  405,  59  Am.  Rep.  13 ;  Fruitt  v.  Anderson,  12 
111.  App.  421.  One  who  furnishes  necessaries  to  a  lunatic  and  his  family  may 
recover  their,  value,  even  though  he  knew  the  lunatic's  mental  condition. 
Smith's  Committee  v.  Forsythe,  90  S.  W.  1075,  28  Ky.  Law  Rep.  1034. 

4«  Sceva  v.  True,  53  N.  H.  627;  Hartley  v.  Hartley's  Estate,  173  Mo.  App. 
18,  155  S.  W.  1099;  Ratliff  v.  Baltzer's  Adm'r,  13  Idnho,  152,  89  Pac.  71. 

*T  2  Exch.  489;  4  Exch.  17. 

^s  See,  also,  Imperial  Loan  Co.  v.  Stone,  [1892]  1  Q.  B.  599;  Kent  v.  La 
Rue,  136  Iowa,  113,  113  N.  W.  547;  Eaton  v.  Eaton,  37  N.  J.  Law,  108,  18  Am. 
Rep.  716 ;  National  Metal  Edge  Box  Co.  v.  Vanderveer,  85  Vt.  488,  82  Atl.  837, 
42  L.  R.  A.  (N.  S.)  343,  Ann.  Cas.  1914D,  865 ;  Walton  v.  Malcolm,  264  111.  389, 
106  N.  E.  211,  Ann.  Cas.  1915D,  1021 ;  Mutual  Life  Ins.  Co.  v.  Hunt,  79  N.  Y. 
541 ;  Ingraham  v.  Baldwin,  9  N.  Y.  45 ;  Shoulters  v.  Allen,  51  Mich.  529,  16  N. 
W.  888 ;  Scanlan  v.  Cobb,  85  111.  296 ;  Burnham  v.  Kidwell,  113  111.  425 ;  Mc- 
Cormick  v.  Littler,  85  111.  62,  28  Am.  Rep.  610;  Studabaker  v.  Faylor,  170  Ind. 
498,  83  N.  E.  747,  127  Am.  St.  Rep.  397 ;  Boyer  v.  Berryman,  123  Ind.  451,  24 
N.  E.  249;  Fay  v.  Burditt,  81  Ind.  433,  42  Am.  Rep.  142;  Wilder  v.  Weakley's 
Estate,  34  Ind.  181 ;  Northwestern  Mutual  Fire  Ins.  Co.  v.  Blakenship,  94  Ind. 
533,  48  >n^.  Rep.  185;  Barkley  v.  Barkley,  182  Ind.  322,  106  N.  E.  609,  L.  R. 


542  PERSONS  NON  COMPOTES   MENTIS  AND  ALIENS  (Ch.  15 

it  has  been  held  that  this  doctrine  does  not  apply,  and  that  he  can 
recover  what  he  has  parted  with,  notwithstanding  the  other  party's 
good  faith.49 

Some  courts  have  refused  to  recognize  the  doctrine  of  Molton 
v.  Camroux,  but,  on  the  contrary,  hold  that,  even  though  a  contract 
with  an  insane  person  has  been  executed  in  whole  or  in  part,  it 
may,  nevertheless,  be  avoided  by  the  insane  party,  though  it  was 
entered  into  by  the  other  party  in  perfect  good  faith,  and  in  igno- 
rance of  the  insanity,  and  though  the  parties  cannot  be  placed  in 
statu  quo.  In  Seaver  v.  Phelps,60  for  instance,  it  was  held  by  the 
Massachusetts  court  that,  in  trover  for  a  note  pledged  to  the  de- 
fendant by  the  plaintiff  while  insane,  it  was  no  defense  that  the 
defendant,  when  he  took  the  note,  did  not  know  the  plaintiff  was 
insane,  and  had  no  reason  to  suspect  it,  and  did  not  practice  any 
fraud  or  unfairness.  "The  fairness  of  the  defendant's  conduct," 
it  was  said,  "cannot  supply  the  plaintiff's  want  of  capacity." 

Insane  Persons  under  Guardianship 

In  some  states  it  is  provided  by  statute,  and  in  others  it  is  held 
independently  of  any  statute,  that  where  a  person  has  been  judicial- 
ly determined  to  be  insane,  under  a  regular  inquisition,  and  placed 
under  guardianship,  his  contracts  while  under  guardianship  are 
absolutely  void,  and  that  no  inquiry  can  be  made  into  the  question 
whether  he  was  in  fact  insane  or  not.61  In  other  states  it  has  been 

A.  1915B,  678;  Smith  v.  Ryan,  191  N.  Y.  452,  84  N.  E.  402,  19  L.  R.  A.  (N.  S.) 
461,  123  Am.  St.  Rep.  609,  14  Ann.  Cas.  505,  reversing  116  App.  Div.  397,  101 
N.  Y.  Supp.  1011 ;  Beals  v.  See,  10  Pa.  56,  49  Am.  Dec.  573 ;  Lancaster  Coun- 
ty Nat.  Bank  v.  Moore,  78  Pa.  407,  21  Am.  Rep.  24 ;  Lincoln  v.  Buckmaster,  32 
Vt.  652;  Young  v.  Stevens,  48  N.  H.  136,  2  Am.  Rep.  202,  97  Am.  Dec.  592; 
Schaps  v.  Lehner,  54  Minn.  208,  55  N.  W.  911 ;  Abbott  v.  Creal,  56  Iowa,  175, 
9  N.  W.  115 ;  Behrens  v.  McKenzie,  23  Iowa,  333,  92  Am.  Dec.  428 ;  Gribben  v. 
Maxwell,  34  Kan.  8,  7  Pac.  584,  55  Am.  Rep.  233 ;  Myers  v.  Knabe,  51  Kan.  720, 
33  Pac.  602 ;  Matthiessen  &  Weichers  Refining  Co.  v.  McMahon's  Adm'r,  38  N. 
J.  Law,  536 ;  Carr  v.  Holliday,  21  N.  C.  344 ;  Riggan  v.  Green,  80  N.  C.  236,  30 
Am.  Rep.  77.  Contracts  of  a  lunatic,  founded  on  an  adequate  consideration,  of 
which  the  lunatic  has  had  the  benefit,  and  made  by  the  other  party  without 
fraud  or  undue  influence  and  in  good  faith,  in  ignorance  of. the  mental  condi- 
tion of  the  lunatic,  and  before  any  inquisition  of  lunacy  has  been  had,  will 
be  upheld  where  the  parties  cannot  be  placed  in  statu  quo.  D.  M.  Smith's 
Committee  v.  Forsythe,  90  S.  W.  1075,  28  Ky.  Law  Rep.  1034. 

4»  Lincoln  v.  Buckmaster,  32  Vt.  658;  Van  Patton  v.  Beals,  46  Iowa,  63. 

60  11  Pick.  304,  22  Am.  Dec.  372.  And  see  Anglo-Calif ornian  Bank  v.  Ames 
(C.  C.)  27  Fed.  727;  Hovey  v.  Hobson,  53  Me.  451,  89  Am.  Dec.  705;  Fitzgerald 
v.  Reed,  9  Smedes  &  M.  (Miss.)  94 ;  Sullivan  v.  Flynn,  20  D.  C.  396. 

ei  Wait  T.  Maxwell,  5  Pick.  (Mass.)  217,  16  Am.  Dec.  391;  Leonard  v.  Leon- 


§§  231-234)  INSANE  PERSONS — CONTRACTS  '     543 

held  that  an  adjudication  of  lunacy  and  guardianship  only  raise  a 
presumption  of  incapacity  to  contract,  which  may  be  rebutted  by 
clear  proof  of  capacity.52  To  bring  a  case  within  the  doctrine  first 
stated  above,  there  must  not  only  have  been  an  adjudication  of 
lunacy,  but  the  lunatic  must  be  actually  under  guardianship  when 
the  contract  is  made.  For  instance,  it  has  been  held  that  if  the 
guardian  is  discharged  as  being  an  unsuitable  person,  and  no 
other  guardian  is  appointed,  the  adjudication  is  not  conclusive  as 
to  incapacity  after  the  guardian's  discharge.58  As  has  been  stated, 
the  fact  that  an  insane  person  is  under  guardianship  does  not  affect 
his  liability  for  necessaries.54 

SAME— RATIFICATION  AND  AVOIDANCE  OF 
CONTRACTS 

231.  The  voidable  contract  of  an  insane  person  may  be  ratified  or 

disaffirmed  by  himself  when  sane,  or  by  his  guardian  dur- 
ing insanity,  or  by  his  personal  representatives  or  heirs 
after  his  death. 

232.  By  the  weight  of  authority,  the  right  to  disaffirm  is  personal  to 

the  insane  party  or  his  representatives,  and  does  not  ex- 
tend to  the  other  party  or  to  strangers. 

233.  In  a  few  jurisdictions  the  consideration  received  by  the  insane 

person  need  not  be  returned  as  a  condition  precedent  to 
avoidance  if  he  is  unable  to  return  it,  but  the  weight  of 
authority  is  the  other  way.  In  all  jurisdictions  it  must  be 
returned  if  it  can  be. 


ard,  14  Pick.  (Mass.)  280;  Rannells  v.  Gerner,  80  Mo.  474 ;  Fitzhugh  v.  Wilcox, 
12  Barb.  (N.  Y.)  235 ;  Church  v.  Rosenstein,  85  Conn.  279,  82  Atl.  568 ;  Burge- 
dorf  v.  Hamer,  95  Neb.  113,  145  N.  W.  250;  Bradbury  v.  Place  (Me.)  10  Atl. 
461;  Mohr  v.  Tulip,  40  Wis.  66;  Knox  v.  Haug,  48  Minn.  58,  50  N.  W.  934; 
Griswold  v.  Butler,  3  Conn.  227. 

62  See  Mott  v.  Mott,  49  N.  J.  Eq.  192,  22  Atl.  997;  Hart  v.  Deamer,  6  Wend. 
(N.  Y.)  497 ;  Parker  v.  Davis,  53  N.  C.  460 ;  Hopson  v.  Boyd,  6  B.  Mon.  (Ky.)  296 ; 
Snook  v.  Watts,  11  Beav.  105;  In  re  Gangwere's  Estate,  14  Pa.  417,  53  Am. 
Dec.  554.  It  may  be  shown  that  contract  was  made  during  a  lucid  interval. 
Stitzel  y.  Farley,  148  111.  App.  635.  The  acts  of  an  adult  incompetent  under 
guardianship  are  legal,  if  beneficial  to  him  and  not  prohibited  by  statute. 
Taylor  v.  Superior  Court,  30  R.  I.  560,  76  Atl.  644. 

6«  Willwerth  v.  Leonard,  156  Mass.  277,  31  N.  E.  299. 

**  Ante,  p.  540. 


544  PERSONS  NON  COMPOTES  MENTIS  AND  ALIENS  (Ch.  15 

234.  In  most  jurisdictions  the  right  of  disaffirmance  can  be  exer- 
cised against  bona  fide  purchasers  of  land  or  goods  sold  by 
the  insane  person,  or  of  negotiable  instruments  executed 
by  him. 

The  voidable  contracts  of  a  person  non  compos  mentis  may  be 
ratified  or  disaffirmed  by  him  when  he  becomes  sane,  or  during  a 
lucid  interval; "  or,  during  the  continuance  of  his  infirmity,  by  his 
committee  or  guardian;66  or,  after  his  death,  by  his  personal  rep- 
resentative 6T  or  his  heirs.68  The  privilege  is  personal  to  the  in- 
sane person,  or  those  who  thus  represent  him ;  and  neither  the  oth- 
er party  to  the  contract  nor  third  persons  can  avoid  it.09  Ratifica- 
tion or  disaffirmance  need  not  be  in  express  words,  but  may  be  by 
conduct,  as  in  the  case  of  ratification  or  disaffirmance  by  a  person 
of  a  contract  made  during  infancy.60 

Return  of  Consideration  on  Avoidance 

In  those  jurisdictions  where  an  insane  person's  contract  is  voida- 
ble, whether  it  is  executed  or  not,  and  whether  or  not  the  other 

BO  AlUs  v.  Billings,  6  Mete.  (Mass.)  416,  39  Am.  Dec.  744 ;  Gibson  v.  Soper, 
6  Gray  (Mass.)  279,  66  Am.  Dec.  414;  Arnold  v.  Richmond  Iron  Works,  1  Gray 
(Mass.)  434;  Turner  v.  Rusk,  53  Md.  65;  Spicer  v.  Holbrook,  96  S.  W.  571,  29 
Ky.  Law  Rep.  865;  Merry  v.  Bergfeld,  264  111.  84,  105  N.  El  758;  Lawrence  v. 
Morriapl67  App.  Div.  186,  152  N.  Y.  Supp.  777;  De  Vries  v.  Crofoot,  148  Mich. 
183,  111  N.  W.  775.  Ratification  or  disaffirmance  must  be  within  reasonable 
time.  West  v.  Seaboard  Air  Line  Ry.,  151  N.  C.  231,  65  S.  E.  979 ;  Weber  v. 
Bottger,  172  Iowa,  418,  154  N.  W.  579. 

60  Moore  v.  Hershey,  90  Pa.  196;  Halley  v.  Troester,  72  Mo.  73;  McClaln  v. 
Davis,  77  Ind.  419. 

6*  Beverley's  Case,  4  Coke,  123b;  Campbell  v.  Kuhn,  45  Mich.  513,  8  N.  W. 
523,  40  Am.  Rep.  479;  Hovey  v.  Hobson,  53  Me.  451,  89  Am.  Dec.  705 ;  Schuff  v. 
Ransom,  79  Ind.  458. 

68  Allis  v.  Billings,  6  Mete,  (Mass.)  415,  39  Am.  Dec.  744;  Schuff  v.  Ransom, 
79  Ind.  458. 

6 »  Carrier  v.  Sears,  4  Allen  (Mass.)  336,  81  Am.  Dec.  707;  Allen  v.  Berry- 
hill,  27  Iowa,  534,  1  Am.  Rep.  309;  ante,  p.  537.  Contra,  Burke  v.  Allen,  29 
N.  H.  106,  61  Am.  Dec.  642.  Sureties  are  liable  on  a  note  executed  by  an  in- 
sane person.  Lee  v.  Yandell,  69  Tex.  34,  6  S.  W.  665.  One  merely  in  privity 
of  estate  with  an  alleged  insane  grantor,  who  was  the  common  source  of  title, 
cannot  attack  such  grantor's  deed  for  alleged  incapacity.  Porter  v.  Brooks, 
(Tex.  Civ.  App.)  159  S.  W.  192. 

eo  Gibson  v.  Soper,  6  Gray  (Mass.)  283,  66  Am.  Dec.  414;  Newton  v.  Evers, 
77  Misc.  Rep.  619,  137  N.  Y.  Supp.  507;  Arnold  v.  Richmond  Iron  Works,  1 
Gray  (Mass.)  434.  Disaffirmance  by  action  to  avoid.  Hull  v.  Louth,  109  Ind. 
315,  10  N.  E.  270,  58  Am.  Rep.  405;  Ashmead  v.  Reynolds,  127  Ind.  441,  26  N. 
B.  80. 


§§  231-234)  INSANE  PERSONS — CONTRACTS  545 

party  acted  in  good  faith  and  in  ignorance  of  his  mental  infirmity,  a 
person  is  not  required  to  restore,  or  offer  to  restore,  the  considera- 
tion received  by  him  as  a  condition  precedent  to  the  avoidance  of  a 
deed  or  other  contract  made  by  him  while  insane,  though  retention 
and  use  of  the  consideration  after  restoration  to  sound  mind  may, 
as  in  the  case  of  infants,  furnish  evidence  of  ratification  of  the  con- 
tract. One  of  the  obvious  grounds,  it  was  said  by  the  Massachu- 
setts court,  on  which  the  deed  of  an  insane  man  or  an  infant  is  held 
voidable,  is  not  merely  the  incapacity  to  make  a  valid  sale,  but  the 
incapacity  prudently  to  manage  and  dispose  of  the  proceeds  of  the 
sale ;  and  the  same  incapacity  which  makes  the  deed  voidable  may 
have  wasted  the  price,  and  rendered  the  restoration  of  the  con- 
sideration impossible.  "The  law  makes  this  very  incapacity  of 
parties  their  shield.  In  their  weakness  they  find  protection.  It 
will  not  suffer  those  of  mature  age  and  sound  mind  to  profit  by 
that  weakness.  It  binds  the  strong  while  it  protects  the  weak.  It 
holds  the  adult  to  the  bargain  which  the  infant  may  avoid ;  the  sane 
to  the  obligation  from  which  the  insane  may  be  loosed.  It  does 
not  mean  to  put  them  on  an  equality.  On  the  other  hand,  it  intends 
that  he  who  deals  with  infants  or  insane  persons  shall  do  it  at  his 
peril.  *  *  *  If  the  law  required  restoration  of  the  price  as  a 
condition  precedent  to  the  recovery  of  the  estate,  that  would  be 
done  indirectly  which  the  law  does  not  permit  to  be  done  directly, 
and  the  great  purpose  of  the  law  in  avoiding  such  contracts — the 
protection  of  those  who  cannot  protect  themselves — defeated."  61 
As  we  have  already  seen,  however,  most  courts  do  not  allow  an 
insane  person  to  avoid  his  contracts  at  all  where  the  other  party 
acted  in  good  faith,  and  in  ignorance  of  his  insanity,  and  cannot  be 
placed  in  statu  quo.62 

Avoidance  as  Against  Third  Persons 

The  fact  that  third  persons  have  acquired  an  interest  under  the 
contract  of  a  person  non  compos  mentis,  in  good  faith,  for  value, 
and  without  notice  of  his  infirmity,  cannot  defeat  his  right  to  avoid 
the  contract.63  This  rule  applies  to  deeds  64  and  negotiable  instru- 

61  Gibson  v.  Soper,  6  Gray  (Mass.)  279,  66  Am.  Dec.  414;  Hovey  v.  Hobson, 
S3  Me.  453,  89  Am.  Dec.  705. 

62  Ante,  p.  541. 

«s  Hovey  v.  Hobson,  53  Me.  45il,  89  Am.  Dec.  705;  Hull  v.  Louth,  109  Ind. 
315,  10  N.  E.  270.  58  Am.  Rep.  405 ;  Long  v.  Fox,  100  111.  43 ;  Rogers  v.  Black- 
well,  49  Mich.  192,  13  N.  W.  512. 

<M  Rogers  v.  Blackwell,  49  Mich.  192,  13  N.  W.  512.  In  North  Carolina  it 
TIFF.P.&  D.REL.(3o  Eo.)-35 


546  PERSONS  NON  COMPOTES  MENTIS  AND  ALIENS  (Ch.  15 

ments  6B  as  well  as  to  other  contracts,  and  it  applies  whether  the 
contract  be  regarded  as  void  or  merely  voidable.  To  protect  bona 
fide  purchasers  in  such  cases  would  be  to  withdraw  protection  from 
the  insane  person. 


LIABILITY  OF  INSANE  PERSON  FOR  TORTS 

235.  An  insane  person  is  liable,  to  the  extent  of  the  actual  dam- 
age, for  torts  involving  no  mental  element;  but  he  is  not 
liable  for  torts  of  which  malice  is  an  essential  element ;  nor 
is  he  liable  for  exemplary  damages. 

The  general  rule  is  that  an  insane  person  is  liable  for  his  torts, 
which  involve  no  mental  element,  to  the  extent  of  the  actual  dam- 
age.06 He  is  liable,  for  instance,  in  tort  for  causing  the  death  of 
another,67  for  trespass  on  land,68  for  conversion,69  for  assault  and 
battery,70  for  false  imprisonment,71  for  negligence.72  In  a  late  Ill- 
inois case  it  was  said :  "There  certainly  can  be  nothing  wrong 
or  unjust  in  a  verdict  which  merely  gives  compensation  for  the  ac- 

is  held  that  the  deed  of  a  lunatic,  duly  recorded,  cannot  be  avoided  as  against 
bona  fide  purchasers.  Odom  v.  Riddick,  104  N.  C.  515,  10  S.  E.  609,  7  L.  R.  A. 
118,  17  Am.  St.  Rep.  686. 

as  Anglo-Calif ornian  Bank  v.  Ames  <C.  C.)  27  Fed.  727;  Wirebach's  Ex'r  v. 
First  Nat.  Bank,  97  Pa.  543,  39  Am.  Rep.  821;  McClain  v.  Davis,  77  Ind.  419. 

««1  Jag.  Torts,  154;  Weaver  v.  Ward,  Hob.  134;  Mclntyre  v.  Sholty,  121 
111.  660,  13  N.  E.  239,  2  Am.  St.  Rep.  140 ;  Morse  v.  Crawford,  17  Vt  499,  44 
Am.  Dec.  349;  Young  v.  Young,  141  Ky.  76,  132  S.  W.  155;  Gibson  v.  Pollock, 
179  Mo.  App.  188,  166  S.  W.  874 ;  Behrens  v.  McKenzie,  23  Iowa,  333,  92  Am. 
Dec.  428 ;  Cross  v.  Kent,  32  Md.  581 ;  and  cases  hereafter  cited. 

67  Mclntyre  v.  Sholty,  121  111.  660,  13  N.  E.  239,  2  Am.  St.  Rep.  140;  Young 
v.  Young,  141  Ky.  76,  132  S.  W.  155 ;  Ballinger  v.  Rader,  153  N.  C.  488,  69  S. 
E.  497 ;  Jewell  v.  Colby,  66  N.  H.  399,  24  Atl.  902. 

es  Amick  v.  O'Hara,  6  Blackf.  (Ind.)  258. 

e  9  Morse  v.  Crawford,  17  Vt  499,  44  Am.  Dec.  349. 

TOTaggard  v.  Innes,  12  U.  C.  C.  P.  77;  Feld  v.  Borodofski,  87  Miss.  727,  40 
South.  816. 

71  Krom  v.  Schoonmaker,  3  Barb.  (N.  Y.)  647. 

72  Williams  v.  Hays,  143  N.  Y.  442,  38  N.  E.  449,  26  L.  R.  A.  153,  42  Am.  St. 
R£R.  743;  Morain  v.  Devlin,  132  Mass.  87,  42  Am.  Rep.  423;  Behrens  v.  Mc- 
Kenzie, 23  Iowa,  333,  92  Am.  Dec.  428.    An  insane  person  cannot,  however,  be 
held  liable  for  the  negligence  of  his  guardian  or  committee  in  the  care  of  the 
incompetent's  property.    Reams  v.  Taylor,  31  Utah,  288,  87  Pac.  1089,  8  L.  R. 
A.  (N.  S.)  436,  120  Am.  St  Rep.  930,  11  Ann.  Cas.  51 ;  Ward  v.  Rogers,  51  Misc. 
Rep.  299,  100  N.  Y.  Supp.  1058.    An  insane  person  is  not  liable  for  the  tort  of 
an  employe  of  the  guardian  in  operating  an  automobile,  not  in  the  presence  of 
the  lunatic.    Gillet  v.  Shaw,  117  Md.  508,  83  Atl.  394,  42  L.  R.  A.  (N.  S.)  87. 


§  235)  INSANE  PERSONS — TORTS  547 

tual  loss  resulting  from  an  injury  inflicted  by  a  lunatic.  He  has 
properly  no  will.  His  acts  lack  the  element  of  intent  or  intention. 
Hence  it  would  seem  to  follow  that  the  only  proper  measure  of 
damages  in  an  action  against  him  for  a  wrong  is  the  mere  compen- 
sation of  the  party  injured.  Punishment  is  not  the  object  of  the 
law  when  persons  unsound  in  mind  are  the  wrongdoers.  There  is, 
to  be  sure,  an  appearance  of  hardship  in  compelling  one  to  respond 
for  that  which  he  is  unable  to  avoid,  for  want  of  the  control  of  rea- 
son. But  the  question  of  liability  in  these  cases  is  one  of  public 
policy.  If  an  insane  person  is  not  held  liable  for  his  torts,  those 
interested  in  his  estate,  as  relatives  or  otherwise,  might  not  have  a 
sufficient  motive  to  so  take  care  of  him  as  to  deprive  him  of  oppor- 
tunities for  inflicting  injuries  on  others.  There  is  more  injustice  in 
denying  to  the  injured  party  the  recovery  of  damages  for  the  wrong 
suffered  by  him  than  there  is  in  calling  upon  the  relatives  or  friends 
of  the  lunatic  to  pay  the  expense  of  his  confinement,  if  he  has  an  es- 
tate ample  enough  for  that  purpose.  The  liability  of  lunatics  for 
their  torts  tends  to  secure  a  more  efficient  custody  and  guardianship 
of  their  persons.  Again,  if  parties  can  escape  the  consequences  of 
their  injurious  acts  upon  the  plea  of  lunacy,  there  will  be  a  strong 
temptation  to  simulate  insanity,  with  a  view  of  masking  the  malice 
and  revenge  of  an  evil  heart."  73 

An  insane  person,  being  incapable  of  entertaining  malice,  cannot 
commit  a  tort  in  which  malice  is  an  essential  element,  like  malicious 
prosecution,  libel,  and  slander.74  As  was  said  by  the  Indiana  court: 
"Slander  must  be  malicious.  An  idiot  or  lunatic,  no  matter  from 
what  cause  he  became  so,  cannot  be  guilty  of  malice.  He  may  in- 
dulge the  anger  of  the  brute,  but  not  the  malice  of  one  who  'knows 
better.' "  75 

In  no  case  can  more  than  actual  damages  be  recovered  from  a 
lunatic  for  his  torts.  Exemplary  damages  being  allowed  on  the 
ground  of  malice  or  evil  intent,  and  an  insane  person  being  inca- 
pable of  malice,  they  can  never  be  recovered.76 


73McIntyre  v.  Sholty,  121  111.  660,  13  N.  B.  239,  2  Am.  St.  Rep.  140. 

7*1  Jag.  Torts,  157;  Gates  v.  Meredith,  7  Ind.  440:  Bryant  v.  Jackson,  6 
Humph.  (Tenn.)  199 ;  Homer  v.  Marshall's  Adm'x,  5  Munf.  (Va.)  466. 

75  Gates  v.  Meredith,  7  Ind.  440. 

761  Jag.  Torts,  158;  Avery  v.  Wilson  (C.  C.)  20  Fed.  856;  Krom  v.  Schoon- 
maker,  3  Barb.  (N.-Y.)  647;  Moore  v.  Home,  153  N.  C.  413,  69  S.  E.  409,  338 
Am,  St.  Rep.  675,  21  Ann.  Cas.  1350. 


548  PERSONS  NON   COMPOTES  MENTIS  AND  ALIENS  (Ch.  15 

RESPONSIBILITY  OF  INSANE  PERSON  FOR  CRIME 

236.  Since  a  criminal  intent  is  an  essential  element  of  every  crime, 

no  person  is  criminally  responsible  for  an  act  if,  at  the 
time  it  is  committed,  he  is  so  insane  as  to  be  incapable  of 
entertaining  such  an  intent. 

237.  Insanity  may  have  the  following  effects : 

(a?  It  may  render  a  person  incapable  of  determining  between 
right  and  wrong,  in  which  case  there  is  no  criminal  re- 
sponsibility. 

(b)  It  may  render  him  incapable  of  knowing  what  he  is  doing 

in  the  particular  instance  only,  as  in  the  case  of  insane  de- 
lusions or  partial  insanity,  in  which  case  his  responsibility 
depends  upon  the  facts  as  they  appear  to  him. 

(c)  It  may  deprive  him  of  freedom  of  will,  as  in  the  case  of  ir- 

resistible impulses,  where  the  party  knows  what  he  is  do- 
ing, but  is  irresistibly  driven  to  do  it.  Perhaps  most  courts 
refuse  to  recognize  such  a  phase  of  insanity  as  a  ground 
of  exemption ;  but,  by  the  better  opinion,  such  an  impulse, 
if  shown  to  have  been  caused  by  disease  of  the  mind,  does 
exempt  the  victim  from  responsibility. 

238.  Moral  or  emotional  insanity,  as  distinguished  from  mental, 

does  not  exempt  one  from  criminal  responsibility. 

239.  A  person  cannot  be  tried  if  he  is  insane,  though  he  may'  have 

been  sane  when  he  committed  the  act,  as  he  is  deemed 
incapable  of  conducting  his  defense.  Nor  can  an  insane 
person  be  sentenced  or  punished,  though  he  may  have 
been  convicted  while  sane. 

The  leading  case  on  the  subject  of  insanity  as  a  defense  in  crimi- 
nal prosecutions  is  McNaghten's  Case,  which  arose  in  England  in 
1843.77  After  the  defendant  had  been  acquitted  in  that  case  on  the 
ground  of  insanity,  the  question  came  up  on  debate  in  the  House 
of  Lords,  and  the  opinion  of  the  judges  was  asked.  They  answered, 
among  other  things,  that  Jurors  should  be  told  in  all  cases  that 
every  man  is  to  be  presumed  to  be  sane,  and  to  possess  a  sufficient 
degree  of  reason  to  be  responsible  for  his  crimes,  until  the  contrary 
be  proved  to  their  satisfaction;  and  that  to  establish  a  defense  on 

TI  10  Clark  &  F.  200. 


§§  236-239)  INSANE  PERSONS — CRIMES  549 

the  ground  of  insanity,  it  must  be  clearly  proved  (1)  that,  at  the 
time  the  act  was  committed,  the  accused  was  laboring  under  such 
a  defect  of  reason,  from  disease  of  the  mind,  as  not  to  know  the 
nature  and  quality  of  the  act  he  was  doing,  or,  if  he  did  know  it, 
that  he  did  not  know  he  was  doing  what  was  wrong;  or  (2)  that  if 
a  person  is  laboring  under  a  partial  delusion,  not  being  in  other 
respects  insane,  he  must  be  considered  in  the  same  situation  as  to 
responsibility  as  if  the  facts  in  respect  to  which  the  delusion  exists 
were  real ;  that  if,  for  example,  a  person,  under  the  influence  of  his 
delusion,  supposes  another  man  to  be  in  the  act  of  attempting  to 
take  his  life,  and  he  kills  that  man,  as  he  supposes,  in  self-defense, 
he  would  be  exempt  from  punishment,  but  if  his  delusion  was  that 
the  deceased  had  inflicted  a  serious  injury  to  his  character  and 
fortune,  and  he  killed  him  in  revenge  for  such  supposed  injury,  he 
would  be  liable  to  punishment. 

Inability  to  Distinguish  between  Right  and  Wrong 

This  answer  of  the  judges,  it  will  be  noticed,  holds  that  a  person 
is  not  criminally  responsible  for  his  act  if  he  was  so  insane  that  he 
did  not  know  the  nature  and  quality  of  the  act,  or  if  he  did  not 
know  it  was  wrong.  This  rule  is  universally  recognized.78  The 
incapacity  in  such  cases  may  arise  from  idiocy,  as  well  as  from 
mania.79  The  defect  of  reason  need  not  be  general  nor  permanent. 
It  is  enough  if  the  party  did  not  know  that  the  particular  act  was 
wrong  at  the  time  he  committed  it,  though  he  may  have  had  his 
reason  shortly  before  the  act,  and  may  have  recovered  it  after- 
wards, and  though  he  may  have  been  able  to  distinguish  between 
right  and  wrong  as  to  other  acts. 

Insane  Delusions 

The  answer  of  the  judges  in  McNaghten's  Case  on  the  question 
of  insane  delusions  has  been  since  recognized  as  the  law  in  this 
country,  as  well  as  in  England.  If,  when  a  man  commits  an  act, 
he  is  laboring  under  an  insane  delusion  as  to  that  particular  act, 
not  being  otherwise  insane,  his  responsibility  depends  upon  the 

™  Flanagan  v.  People,  52  N.  Y.  467,  11  Am.  Rep.  731;  Dunn  v.  People,  109 
111.  635;  Hornish  v.  People,  142  111.  620,  32  N.  E.  677,  18  L.  R.  A.  237;  Perkins 
v.  United  States,  228  Fed.  408,  142  C.  C.  A.  638 ;  State  v.  Riddle,  245  Mo.  451, 
150  S.  W.  1044,  43  L.  R.  A.  (N.  S.)  150,  Ann.  Cas.  1914A,  884 ;  Oborn  v.  State, 
143  Wis.  249,  126  N.  W.  737,  31  L.  R.  A.  (N.  S.)  966;  Clark,  Or.  Law,,  53,  54, 
where  cases  are  collected. 

7»  Com.  v.  Heath,  11  Gray  (Mass.)  303;  Ortwein  v.  Com.,  76  Pa.  414,  18  Am. 
Rep.  420. 


550  PERSONS  NON  COMPOTES  MENTIS  AND  ALIENS  (Ch.  15 

facts  as  they  seemed  to  him.80  If  a  man  kills  another  under  the 
insane  delusion  that  the  other  is  attempting  to  take  his  life,  he  is 
excused.  But,  where  a  man  killed  another  under  the  insane  delu- 
sion that  the  latter  was  trying  to  marry  his  mother,  he  was  held 
responsible  for  the  murder,  since  this  fact,  even  if  it  really  existed, 
would  be  no  defense.81  So,  where  a  convict  killed  a  fellow  convict, 
it  was  rightly  held,  on  the  same  principle,  that  a  delusion  that  the 
deceased  had  divulged  a  plan  of  escape  was  no  defense.82 

There  must  have  been  an  actual  delusion,  and  the  act  must  have 
been  immediately  connected  with  it.  If  a  person  knows  all  the 
facts  as  to  which  he  acts,  he  is  not  exempt,  though  he  may  have 
had  insane  delusions  as  to  other  facts.88 

Irresistible  Impulse 

Where  a  person,  from  Disease  of  the  mind,  and  not  from  mere 
moral  depravity  and  long  indulgence  in  vice,  is  incapable  of  re- 
straining himself,  many  of  the  courts  hold  that  he  is  exempt  from 
responsibility,  though  he  may  have  known  that  he  was  doing  what 
was  wrong.  In  other  words,  it  is  held  that  a  person  may  know 
that  he  is  doing  wrong  when  he  commits  an  act,  but,  by  reason  of 
the  duress  of  a  mental  disease,  he  may  have  lost  the  power  to 
choose  between  the  right  and  the  wrong,  and  to  avoid  doing  the  act, 
and  that  when  this  is  shown  to  be  the  case,  he  is  not  criminally 
responsible.84  Most  of  the  courts,  perhaps,  have  refused  to  recog- 
nize any  such  ground  of  exemption,  and  limit  the  test  of  responsi- 
bility to  ability  to  distinguish  between  right  and  wrong.85  If  such 

so  McNaghten's  Case,  10  Clark  &  F.  200;  Hadfield's  Case,  27  How.  State  Tr. 
1282;  Com.  v.  Rogers,  7  Mete.  (Mass.)  500.  41  Am.  Dec.  458;  People  v.  Pine,  2 
Barb.  (N.  Y.)  571 ;  State  v.  Lewis,  20  Nev.  33.3,  22  Pac.  241;  Thurman  v.  State, 
32  NTeb.  224,  49  N.  W.  338 ;  Clark,  Cr.  Law,  54.  55,  and  cases  there  cited.  Par- 
tial insanity  does  not  excuse,  unless  the  derangement  is  such  that  the  person  is 
incapable,  at  the  time  of  committing  the  act,  of  distinguishing  between  the 
right  and  the  wrong  in  reference  to  that  particular  act.  State  v.  Porter,  213 
Mo.  43,  111  S.  W.  529,  127  Am.  St.  Rep.  589.  And  see  People  v.  Willard,  150 
Cal.  543,  89  Pac.  124. 

si  Boiling  v.  State,  54  Ark.  588,  16  S.  W.  658. 

sz  People  v.  Taylor,  138  N.  Y.  398,  34  N.  E.  275. 

as  Freeman,  v.  People,  4  Denio  (N.  Y.)  9,  47  Am.  Dec,  216;  Clark,  Cr.  Law, 
55,  and  cases  there  cited. 

a*  Clark,  Cr.  Law,  56,  57,  and  cases  there  cited;  Parsons  v.  State,  81  Ala. 
577,  2  South.  854,  60  Am.  Rep.  193;  Com.  v.  Rogers,  7  Mete.  (Mass.)  500,  41 
Am.  Dec.  458;  People  v.  Finley,  38  Mich.  482 ;  State  v.  Jones,  50  N.  H.  369,  9 
Am.  Rep.  242;  Hopps  v.  People,  31  111.  385,  83  Am.  Dec.  231;  Dacey  v.  People, 
116  111.  555,  6  N.  E.  165. 

so  Clark,  Cr.  Law,  56,  and  cases  there  cited;  Reg.  v.  Stokes,  3  Car.  &  K.  185; 


§§  236-239)  INSANE   PERSONS — CRIMES  551 

a  condition  can  exist — and  the  doctors  say  that  it  does — it  ought 
to  exempt  from  responsibility  as  fully  as  any  other  kind  of  insanity. 
Great  care  should  be  taken  in  recognizing  such  a  ground  of  exemp- 
tion; and  it  should  be  clear  that  the  irresistible  impulse  is  due  to 
disease  of  the  mind,  and  not  to  moral  depravity. 

Moral  and  Emotional  Insanity 

A  perverted  condition  of  the  moral  system  is  sometimes  spoken 
of  as  "moral  insanity."  It  is  never  a  ground  of  exemption  from 
criminal  responsibility.  Though,  from  low  associations  and  con- 
stant indulgence  in  vice,  a  man's  moral  system  has  become  so  mor- 
bid, and  his  passions  so  uncontrollable,  that  his  conscience  or  sense 
of  right  and  wrong  will  not  restrain  him,  he  is,  nevertheless,  re- 
sponsible for  his  acts,  if  his  mind  is  sound.86  So,  "emotional  in- 
sanity," as  it  is  called,  or  temporary  passion,  arising  from  excite- 
ment or  anger,  and  not  from  mental  disease,  is  no  defense.87 

Insanity  after  Commission  of  Crime 

If  a  person  becomes  insane  after  he  has  committed  a  crime,  this 
does  not  render  him  any  the  less  guilty.  But  he  cannot  be  arraign- 
ed and  put  upon  his  trial  while  he  is  insane;  and  if  he  becomes  in- 
sane after  he  has  been  arraigned  but  before  judgment  the  trial 
must  end.88  The  reason  of  this  is  that  an  insane  person  cannot 
properly  defend  himself.  So,  if  he  becomes  insane  after  a  convic- 
tion and  sentence,  he  cannot  be  punished.89  Such  insanity,  how- 
Flanagan  v.  People,  52  N.  Y.  4fi7.  11  Am.  Rep.  731;  State  v.  Harrison,  36  W. 
Va.  729,  15  S.  E.  982,  18  L.  R.  A.  224 ;  State  v.  Alexander,  30  S.  C.  74,  8  S.  E. 
440,  14  Am.  St.  Rep.  879 ;  Thomas  v>State,  55  Tex.  Cr.  R.  293,  116  S.  W.  600 ; 
Oborn  v.  State,  143  Wis.  249,  126  N.  W.  737,  31  L.  R.  A.  (N.  S.)  966;  State  v. 
Riddle,  245  Mo.  451,  150  S.  W.  1044,  43  L.  R.  A,  (N.  S.)  150,  Ann.  Gas.  1914A, 
844. 

se  Clark,  Cr.  Law,  57,  58,  and  cases  there  cited;  Flanagan  v.  People,  52  N. 
Y.  467,  11  Am.  Rep.  731;  People  v.  Finley,  38  Mich.  482;  Leache  v.  State,  22 
Tex.  App.  279,  3  S.  W.  539,  58  Am.  Rep.  638.  But  see  Scott  v.  Com.,  4  Mete. 
(Ky.)  227,  83  Am.  Dec.  461. 

87  Clark,  Cr.  Law,  58,  ami  cases  there  cited;  People  v.  Mortimer,  48  Mich. 
37,  11  N.  W.  776;  People  v.  Foy,  138  N.  Y.  664,  34  N.  E.  396;  Beel  v.  State,  120 
Ark.  530,  180  S.  W.  186 ;  People  v.  Schmidt,  216  N.  Y.  324,  110  N.  E.  945,  L.  R. 
A.  1916D,  519,  Ann.  Cas.  1916A,  978,  rehearing  denied  216  N.  Y.  762,  111  N. 
E.  1095. 

s  s  in  re  Wright,  74  Kan.  406,  89  Pac.  678;  Clark,  Cr.  Proc.  427,  428,  and 
cases  there  cited. 

8»  State  v.  Snell,  46  Wash.  327,  89  Pac.  931,  9  L.  R.  A.  (N.  S.)  1191;  Jordan 
v.  State,  124  Tenn.  81,  135  S.  W.  327,  34  L.  R.  A.  (N.  S.)  1115 ;  Ex  parte 
Wright,  74  Kan.  406,  89  Pac.  678. 


552  PERSONS  NON  COMPOTES  MENTIS  AND  ALIENS  (Ch.  15 

ever,  does  not  prevent  his  being  tried  and  punished  if  he  subse- 
quently becomes  sane. 


CAPACITY  TO  MAKE  A  WILL 

240.  A  person  who  is  of  unsound  mind  to  such  an  extent  as  to  be 

incapable  of  comprehending  the  condition  of  his  property 
and  his  relations  to  the  persons  who  are  or  might  be  the 
objects  of  his  bounty,  and  of  collecting  in  his  mind,  with- 
out prompting,  the  elements  of  the  business  to  be  trans- 
acted, and  to  hold  them  there  until  their  relation  to  each 
other  can  be  perceived,  and  a  rational  judgment  in  respect 
thereto  formed,  is  incapable  of  making  a  will. 

241.  A  person  under  guardianship  is  prima  facie  wanting  in  testa- 

mentary capacity,  but  his  will  is  valid  if  it  be  shown  that 
he  was  in  fact  of  sound  mind. 

To  be  capable  of  making  a  valid  will,  a  person  must  be  of  sound 
mind.  Blackstone  says  that  "mad  men,  or  otherwise  non  compotes, 
idiots  or  natural  fools,  persons  grown  childish  by  reason  of  old  age 
or  distemper,  such  as  have  their  senses  besotted  with  drunkenness, 
all  these  are  incapable,  by  reason  of  mental  disability,  to  make  any 
will  so  long  as  such  disability  lasts."  80  Where  it  is  shown  that  a 
testator  was  an  idiot  or  totally  insane,  there  can  be  no  difficulty  in 
declaring  the  will  void.81  The  question  of  testamentary  capacity, 
however,  is  often  very  difficult,  where  it  is  sought  to  show  partial 
insanity  or  insane  delusions,  or  to  show  a  slight  degree  of  mental 
disorder. 

The  degree  of  mental  capacity  has  been  variously  stated.  In  a 
New  York  case  it  was  said:  "The  testator  should  be  capable  of 
comprehending  the  condition  of  his  property,  and  his  relations  to 
the  persons  who  are  or  might  have  been  the  objects  of  his  bounty. 
He  should  be  able  to  collect  in  his  mind,  without  prompting,  the 
elements  of  his  business  to  be  transacted,  and  hold  them  there  un- 
til their  relations  to  each  other  can  be  perceived,  and  a  rational 
judgment  in  respect  thereto  be  formed."  92  And  in  a  Pennsylvania 

•o  2  BL  Comm.  497. 
•i  Eggere  v.  Eggers,  57  Ind.  461. 

•2  Van  Guysllng  v.  Van  Kuren,  35  N.  Y.  70.  And  see  Converse's  Ex'r  v.  Con- 
rerse,  21  Vt  168,  52  Am.  Dec.  58;  American  Bible  Soc,  r.  Price,  115  III.  623,  5 


§§    240-241)  INSANE  PERSONS — WILLS  553 

case  it  was  said:  "A  man  of  sound  mind  and  disposing  memory 
is  one  who  has  a  full  and  intelligent  knowledge  of  the  act  he  is  en- 
gaged in,  a  full  knowledge  of  the  property  he  possesses,  an  intelli- 
gent perception  and  understanding  of  the  disposition  he  desires  to 
make  of  it,  and  of  the  persons  and  objects  he  desires  shall  be  the 
recipients  of  his  bounty.  It  is  not  necessary  that  he  collect  all 
these  in  one  review.  If  he  understands,  in  detail,  all  that  he  is 
about,  and  chooses  with  understanding  and  reason  between  one 
disposition  and  another,  it  is  sufficient  for  the  making  of  a  will.  If, 
from  any  cause,  he  is  so  enfeebled  in  mind  as  to  be  incapable  of 
knowing  the  property  he  possesses,  of  appreciating  the  effect  of 
any  disposition  made  by  him  of  it,  and  of  understanding  to  whom 
he  intends  to  bequeath  it,  he  is  without  the  requisite  testamentary 
capacity.93 

A  man  is  presumed  to  have  been  sane  until  the  contrary  is 
proved.  Therefore,  where  a  will  is  proved,  and  is  objected  to  on 
the  ground  of  want  of  mental  capacity,  the  burden  of  proof  is  on 
the  contestant.94  But,  when  settled  insanity  is  proved  to  have 
existed  prior  to  the  date  of  the  will,  its  continuance  will  be  pre- 
sumed, and  the  burden  is  on  the  proponent  to  show  that  the  will 
was  made  in  a  lucid  interval.96 

If  the  testator,  at  the  time  of  making  his  will,  was  laboring  under 
an  insane  delusion  as  to  the  natural  objects  of  his  bounty,  which 
affected  its  provisions,  it  will  be  held  invalid.96  Thus,  a  will  dis- 
inheriting a  son  would  be  invalid  if  the  testator  was  under  an  in- 
sane delusion  that  the  son  was  not  his  own.  But  a  delusion  not  aris- 

N.  E.  126 ;  In  re  Blakely's  Will,  48  Wis.  294,  4  N.  W.  337;  Harrison  v.  Rowan, 
3  Wash.  C.  C.  580.  Fed.  Cas.  No.  6,141;  Abb.  Desc.,  Wills  &  Adm.  227. 

83  Wilson  v.  Mitchell,  101  Pa.  495.  And  see  Shaver  v.  McCarthy,  110  Pa. 
339,  5  Atl.  614.  Partial  insanity,  if  of  such  character  as  to  affect  the  provi- 
sions of  the  will,  invalidates  it.  Thomas  v.  Carter,  170  Pa.  292,  33  Atl.  81, 
50  Am.  St.  Rep.  770 ;  Blough  v.  Parry,  144  Ind.  463,  40  N.  E.  70,  43  N.  E.  560. 

»4  Brooks  v.  Barrett,  7  Pick.  (Mass.)  94. 

»s  Attorney  General  v.  Parnther,  3  Brown,  Ch.  443.  "Lunacy  being  once  es- 
tablished, the  burden  is  on  the  party  claiming  through  some  act  of  the  luna- 
tic to  show  that  it  was  done  in  a  lucid  interval ;  and,  a  return  to  insanity  be- 
ing proved,  the  burden  is  upon  the  party  claiming  a  relapse  into  insanity.'" 
Wright  v.  Jackson,  59  Wis.  569,  18  N.  W.  486. 

96  American  Seamen's  Friend  Soc.  v.  Hopper,  33  N.  T.  619.  And  see  Dew  v. 
Clarke,  5  Russ.  163;  Stanton  v.  Wetherwax,  16  Barb.  (N.  T.)  259;  Ballantine 
v.  Proudfoot,  62  Wis.  216,  22  N.  W.  392;  Smee  v.  Smee,  32  Moak,  311,  5  Prob. 
Div.  84,  Abb.  Desc.,  Wills  &  Adm.  205;  Morse  v.  Scott,  4  Dem.  Sur.  (N.  Y.)  507, 
Abb.  Desc,,  Wills  &  Adm.  209S 


554  PERSONS  NON  COMPOTES  MENTIS  AND  ALIENS  (Ch.  15 

ing  from  mental  disorder  would  be  immaterial.  Thus,  the  testa- 
tor's mistaken  opinion  that  his  child  is  illegitimate  will  not  invali- 
date his  will.97  A  will  is  not  affected  even  by  an  insane  delusion 
that  has  no  connection  with  it.98 

Wills  are  most  frequently  contested  for  mental  incapacity  on  the 
ground  of  senile  dementia,  which  results  from  a  decay  and  wearing 
out  of  the  mental  faculties  in  old  age.  If,  from  such  a  cause,  a  per- 
son has  not  sufficient  mental  capacity,  within  the  rules  above 
stated,  he  cannot  make  a  valid  will.99  A  person  is  not  rendered  in- 
competent to  make  a  will  by  deafness,  dumbness,  or  blindness,  if 
his  mind  is  sound.1  Nor  does  mere  eccentricity  render  him  incom- 
petent.2 

The  fact  that  a  testator  was  under  guardianship  as  non  compos 
mentis  at  the  time  he  made  the  will  does  not  render  the  will  in- 
valid, if  it  can  be  shown  that  he  was  in  fact  of  sound  mind.  But 
the  fact  of  guardianship  is  prima  facie  evidence  of  insanity  and 
incapacity  to  make  a  will,  and  the  burden  of  showing  the  contrary 
is  on  the  proponent.8 


CONTRACTS  OF  DRUNKEN  PERSONS 

242.  A  contract  or  conveyance  made  by  a  person  when  he  is  so 

drunk  that  he  is  incapable  of  understanding  its  nature  and 
effect  is  voidable  at  his  option.  He  is  liable,  however,  on 
contracts  created  by  law,  and  for  necessaries. 

243.  The  rules  as  to  ratification  and  avoidance  are  substantially  the 

same  as  in  the  case  of  infants  and  insane  persons.  Some 
courts,  however,  hold  that  the  right  of  avoidance  can- 
not be  exercised  against  bona  fide  purchasers  for  value. 


•T  Olapp  v.  Fullerton.  34  N.  T.  190,  90  Am.  Dec.  681.  And  see  Stackhouse 
v.  Horton,  15  N.  J.  Eq.  202. 

»8  See  Banks  v.  Goodfellow,  L.  R.  5  Q.  B.  549.  Abb.  Desc.,  Wills  &  Adm. 
211;  Smee  v.  Smee,  32  Moak,  311,  5  Prob.  Div.  84,  Abb.  Desc.,  Wills  &  Adm. 
205;  In  re  Kendrick's  Estate,  130  Cal.  360,  62  Pac.  605;  Snell  v.  Welclon. 
243  111.  496,  90  N.  E.  1061 ;  Whitney  v.  Twombley,  136  Mass.  145. 

80  As  to  senile  dementia,  and  incapacity  on  that  ground,  see  Van  Alst  v. 
Hunter,  5  Johns.  Ch.  (N.  Y.)  148;  Blanchard  v.  Nestle,  3  Denio  (N.  Y.)  37. 

i  Brower  v.  Fisher,  4  Johns.  Ch.  (N.  Y.)  441;  In  re  Barber,  39  Ch.  Div.  187. 

» In  re  Smith's  Will,  52  Wis.  543,  8  N.  W.  616,  38  Am.  Rep.  756. 

«  Stone  v.  Damon,  12  Mass.  488 ;  Breed  v.  Pratt,  18  Pick.  (Mass.)  115. 


§§  242-243)  DRUNKEN   PERSONS — CONTRACTS  555 

A  drunken  person  is  in  exactly  the  same  position  as  an  insane 
person  with  respect  to  his  capacity  to  enter  into  contracts.  It  was 
formerly  considered  that  a  man  should  not  be  permitted  to  stultify 
himself  by  pleading  drunkenness  when  sued  upon  a  contract,  or  for 
the  purpose  of  avoiding  a  deed ;  but  this  doctrine  has  long  since 
been  exploded,  and  it  is  now  perfectly  well  settled  that  a  contract 
or  conveyance  made  by  a  drunken  person  is  voidable  at  his  option 
if  his  drunkenness  was  so  excessive  as  to  render  him  incapable  of 
comprehending  its  nature  and  effect,  or,  in  other  words,  of  know- 
ing what  he  was  doing.4  The  contract  or  conveyance  is  not  void, 
but  simply  voidable,  at  the  option  of  the  drunken  party.  It  makes 
no  difference  that  the  intoxication  was  voluntary,  and  not  fraudu- 
lently induced  or  caused  by  the  other  party.5  The  defense  of 
drunkenness  to  defeat  a  contract  is  personal,  like  the  defense  of 
infancy  and  insanity,  and  can  only  be  set  up  by  the  party  or  his 
representative.  The  other  party  cannot  avoid  the  contract,  nor 
can  it  be  attacked  by  third  persons.6 

Some  courts  make  no  distinction  between  cases  in  which  the 
drunken  person  is  under  guardianship  and  other  cases ;  but  hold 
the  contract  or  conveyance  merely  voidable  in  both  cases.7  Other 

*  Clark,  Cont.  274,  and  cases  there  cited :  Gore  v.  Gibson.  13  Mees.  &  W. 
623;  Spoonheim  v.  Spoonheim,  14  N.  D.  380,  104  N.  W.  845;  Barrett  v.  Bux- 
ton,  2  Aikens  (Vt.)  167,  16  Am.  Dec.  691;  Carpenter  v.  Rodgers,  61  Mich.  384, 
28  N.  W.  156,  1  Am.  St.  Rep.  595;  Miller  v.  Finley,  26  Mich.  254,  12  Am. 
Rep.  306;  Foss  v.  Hildreth,  10  Allen  (Mass.)  76;  Van  Wyck  v.  Brasher,  81 
N.  T.  260 ;  Shackelton  v.  Sebree,  86  111.  616 ;  Bates  v.  Ball,  72  111.  108 ;  Newell 
v.  Fisher,  11  Smedes  &  M.  (Miss.)  431,  49  Am.  Dec.  66;  Broadwater  v.  Darne, 
10  Mo.  277.  Slight  intoxication  is  not  enough  to  render  a  contract  voidable. 
It  must  be  so  excessive  as  to  render  the  party  incapable  of  knowing  what 
he  is  doing.  Van  Wyck  v.  Brasher,  81  N.  Y.  260;  Kuhlman  v.  Wieben,  129 
Iowa,  188,  105  N.  W.  445,  2  L.  R.  A.  (N.  S.)  666;  Conley  v.  Nailor,  118  U. 
S.  127,  6  Sup.  Ct.  1001,  30  L.  Ed.  112 ;  Van  Horn  v.  Keenan,  28  111.  445.  The 
test  whether  intoxication  is  such  as  to  render  the  subject  thereof  incompe- 
tent to  contract  is  whether  his  condition  is  such  that  he  does  not  know  what 
he  is  about,  and  is  incapable  of  appreciating  what  he  is  doing.  Mere  im- 
becility of  mind,  or  inability  to  act  wisely  or  discreetly  or  to  effect  a  good 
bargain,  is  insufficient.  CAMERON-BARKLEY  CO.  v.  THORNTON  LIGHT 
&  POWER  CO.,  138  N.  C.  365,  50  S.  E.  695,  107  Am.  St.  Rep.  532,  Cooley  Cas. 
Persons  and  Domestic  Relations,  290. 

»  CAMERON-BARKLEY  CO.  v.  THORNTON  LIGHT  &  POWER  CO.,  138 
N.  C.  365,  50  S.  E.  695,  107  Am.  St.  Rep.  532,  Cooley  Cas.  Persons  and  Do- 
mestic Relations,  290;  Fowler  v.  Meadow  Brook  Water  Co.,  208  Pa.  473,  57 
Atl.  959.  See,  also,  the  cases  above  cited.  But  see  Youn  v.  Lament,  56  Minn. 
216,  57  N.  W.  478. 

e  Matthews  v.  Baxter,  L.  R.  8  Exch.  132;  Eaton's  Adm'r  v.  Perry,  29  Mo.  96. 

^  Donehoo's  Appeal  (Pa.)  15  Atl.  924. 


556  PERSONS  NON  COMPOTES  MENTIS  AND  ALIENS  (Ch.  15 

courts  hold  that  in  the  former  case  it  is  absolutely  void."  A  drunk- 
en person,  like  an  infant  or  an  insane  person,  is  liable  for  neces- 
saries furnished  to  him,  or  to  his  wife  or  children.9 

Ratification  and  Avoidance 

The  principles  governing  the  ratification  or  avoidance  of  a  con- 
tract and  conveyance  by  a  person  who  was  drunk  when  he  made  it 
are  the  same  as  in  the  case  of  insane  persons.  He  may  either  rati- 
fy or  avoid  it  when  he  is  sober.  And  ratification  may  be  by  con- 
duct, as  by  retaining  the  consideration,  or  failure  to  disaffirm  for  an 
unreasonable  time.10  After  the  contract  or  conveyance  has  been 
ratified,  it  is  binding  absolutely,  and  cannot  then  be  avoided.11 
On  avoidance,  the  consideration  must  be  returned,  or  an  offer  be 
made  to  return  it,12  unless,  perhaps,  it  was  wasted  before  the  party 
became  sober.18 

Some  courts  hold  that  drunkenness  is  no  defense  as  against  inno- 
cent third  persons  who  acquire  rights  under  or  through  the  con- 
tract or  conveyance  for  value  and  without  notice ;  that  a  party  to 
a  negotiable  instrument,  or  the  grantor  of  land,  cannot  set  up  his 
intoxication  at  the  time  he  delivered  the  instrument  or  conveyance, 
as  against  a  bona  fide  holder  or  a  bona  fide  purchaser  of  the  land, 
for  value.14  Other  courts  allow  such  a  defense  even  as  against  them, 
to  the  same  extent  as  if  the  party  had  been  insane.15 

sWadsworth  v.  Sharpsteen,  8  N.  Y.  388,  59  Am.  Dec.  499;  Cockrill  v. 
Cockrill,  92  Fed.  811,  34  C.  C.  A.  254 ;  Anderson  v.  Hicks,  150  App.  Div.  289, 
134  N.  Y.  Supp.  1018;  Ralph  v.  Taylor,  33  R.  I.  503,  82  Atl.  279;  Id,  (R. 
I.)  82  Atl.  495;  Philadelphia  Trust,  Safe  &  Deposit  Ins.  Co.  v.  Allison,  108 
Me.  326,  80  Atl.  833,  39  L.  R.  A.  (N.  S.)  39. 

o  Gore  v.  Gibson,  13  Mees.  &  W.  623 ;   McCrillis  v.  Bartlett,  8  N.  H.  569. 

10  Williams  v.  Inabnet,  1  Bailey  (S.  C.)  343;    Relnskopf  v.  Rogge,  37  Ind. 
207;    Smith  v.  Williamson,  8  Utah,  219,  30  Pac.  753;   Mansfield  v.  Watson,  2 
Iowa,  111. 

11  Matthews  v.  Baxter,  L.  R.  8  Exch.  132;   Joest  v.  Williams,  42  Ind.  565, 
13  Am.  Rep.  377. 

12  Joest  v.  Williams,  42  Ind.  565, 13  Am.  Rep.  377. 

i»  Thackrah  v.  Haas,  119  U.  S.  499,  7  Sup.  Ct.  311,  30  L.  Ed.  486. 

i«  Johnson  v.  Medlicott,  3  P.  Wms.  130,  note;  State  Bank  v.  McCoy,  69  Pa. 
204,  8  Am.  Rep.  246;  McSparran  v.  Neeley,  91  Pa.  17.  See  Norton,  Bills  & 
N.  216-223. 

IB  Gore  v.  Gibson,  13  Mees.  &  W.  623;  Wigglesworth  v.  Steers,  1  Hen.  & 
li.  (Va.)  70,  3  Am.  Dec.  602;  Jenners  v.  Howard,  6  Blackf.  (Ind.)  240;  Haw- 
kins v.  Bone,  4  Fost.  &  F.  311. 


§  245)  DRUNKEN  PERSONS — RESPONSIBILITY  FOR  CRIMES  557 

LIABILITY  OF  DRUNKEN  PERSON  FOR  TORTS 

244.  A  drunken  person  is  liable  for  his  torts  to  the  same  extent  as 

if  he  were  sober,  except  that  the  fact  of  drunkenness  may 
mitigate  the  damages  by  excluding  the  question  of  malice. 

The  fact  that  a  man  is  drunk  when  he  commits  a  tort  may  in 
some  cases  mitigate  the  damages,  by  excluding  the  question  of 
malice,16  but  otherwise  it  is  no  defense.  He  is  liable  in  damages 
for  any  tortious  conduct,  even  though  he  may  have  been  so  drunk 
that  he  did  not  know  what  he  was  doing.17 

\ 
RESPONSIBILITY   OF  DRUNKEN  PERSON   FOR   CRIME 

245.  Voluntary   drunkenness   furnishes   no   ground   of   exemption 

from  responsibility  for  crime,  unless  the  act  is  committed 
while  the  party  is  laboring  under  settled  insanity  or  de- 
lirium tremens,  resulting  from  intoxication.  But,  where  a 
specific  intent  is  an  essential  ingredient  of  the  particular 
crime,  the  fact  of  intoxication  may  negative  its  existence ; 
and  in  homicide  cases  it  may  be  material  in  determining 
whether,  in  the  case  of  adequate  provocation  to  reduce 
the  killing  to  manslaughter,  the  party  acted  under  the 
provocation  or  from  malice. 

Nothing  is  better  settled  in  the  criminal  law  than  that  voluntary 
drunkenness  does  not,  exempt  a  man  from  responsibility  for  his 
crimes.18  In  England,  nearly  500  years  ago,  it  was  said  that,  "if  a 
man  that  is  drunk  kills  another,  this  shall  be  felony,  and  he  shall 
be  hanged  for  it;  and  yet  he  did  it  through  ignorance,  for  when 
he  was  drunk  he  had  no  understanding  nor  memory ;  but  inasmuch 
as  that  ignorance  was  occasioned  by  his  own  act  and  folly,  and  he 

i«  1  Jag.  Torts,  166;   Dawson  v.  State,  16  Ind.  428,  79  Am.  Dec.  439. 

IT  1  Jag.  Torts,  165;  Reed  v.  Harper,  25  Iowa,  87,  95  Am.  Dec.  774;  Cas- 
sady  v.  Magher,  85  Ind.  228;  McKee  v.  Ingalls,  4  Scam.  (111.)  30;  Alger  v. 
City  of  Lowell,  3  Allen  (Mass.)  402. 

is  Clark,  Cr.  Law,  60;  Beverley's  Case,  4  Coke,  125a;  Ryan  v.  United  States, 
26  App.  D.  C.  74,  6  Ann.  Cas.  633 ;  Byrd  v.  State,  76  Ark.  286,  88  S.  W.  974 ; 
People  v.  .Rogers,  18  N.  Y.  9,  72  Am.  Dec.  484 ; '  U.  S.  v.  Drew,  5  Mason,  28, 
Fed.  Cas.  No.  14,933;  People  v.  Garbutt,  17  Mich.  9,  97  Am.  Dec.  162;  Peo- 
ple v.  Walker,  38  Mich.  156;  Alford  v.  State,  110  Ark.  300,  161  S.  W.  497; 
State  v.  Guthridge,  88  Kan.  846,  129  Pac.  1143;  Com.  v.  Hawkins,  3  Gray 


558  PERSONS  NON   COMPOTES  MENTIS  AND  ALIENS  (Ch.  15 

might  have  avoided  it,  he  shall  not  be  privileged  thereby."  19  The 
rule  does  not  apply  where  settled  insanity  or  delirium  tremens  re- 
sults from  voluntary  drunkenness ;  but  in  such  a  case  the  party  is 
in  the  same  position  as  if  he  were  insane  from  any  other  cause.20 
Nor  does  the  rule  apply  to  crimes  of  which  a  specific  intent  is  an 
essential  element,21  like  burglary,  where  the  specific  intent  to 
commit  a  felony  is  essential,  or  robbery,  or  larceny,  or  assault  with 
intent  to  kill.  Nor,  in  some  states,  does  it  apply  to  murder  in  the 
first  degree,  as  a  specific  intent  to  kill  is  necessary,  and  general 
malice  is  not  sufficient,  as  at  common  law.22  Where  a  man,  when 
he  commits  an  act,  is  too  drunk  to  entertain  a  specific  intent  which 
is  necessary  to  make  that  act  a  particular  crime,  and  did  not  first 
form  such  intent,  and  then  become  intoxicated,  he  cannot  be  guilty 
of  that  particular  crime.23  But  he  may  be  guilty  of  some  other 
crime  for  which  no  specific  intent  is  necessary.  Thus  drunkenness 
may  prevent  a  man  from  being  guilty  of  assault  with  intent  to  kill, 
but  he  may  be  convicted  of  common  assault,  for  in  the  latter  case 
no  specific  intent  is  necessary.24  Drunkenness  is  no  defense  in  a 


(Mass.)  463;  Mclntyre  v.  People,  38  111.  514;  Rafferty  v.  People,  66  111.  118; 
Upstone  v.  People,  109  111.  169;  State  v.  Welch,  21  Minn.  22;  Choice  v.  State, 
31  Ga.  424. 

i »  Reniger  v.  Fogossa,  Plow.  19. 

20  People  v.  Hammill,  2  Parker,  Cr.  R.  (N.  Y.)  223;   Reg.  v.  Davis,  14  Cox, 
Cr.  Cas.  563;   U.  S.  v.  McGlue,  1  Curt.  1,  Fed.  Cas.  No.  15,679;    Beasley  v. 
State,  50  Ala.  149,  20  Am.  Rep.  292;    State  v.  Robinson,  20  W.  Va.  713,  43 
Am.  Rep.  799;    Perkins  v.  United  States,  228  Fed.  408,  142  C.  C.  A.  638; 
Martin  v.  State,  100  Ark.  189,  139  S.  W.  1122;    Cochran  v.  State,  65  Fla.  91, 
61  South.  187. 

21  State  v.  Yates,  132  Iowa,  475,  109  N.  W.  1005;    State  v.  Truilt,  5  Pen- 
newill  (Del.)  466,  62  Atl.  790;    Collins  v.  State,  115  Wis.  596,  92  N.  W.  266; 
State  v.  Blodgett,  50  Or.  329,  92  Pac.  820;    Sabens  v.  United  States,  40  App. 
D.  C.  440 ;   Terhune  v.  Commonwealth,  144  Ky.  370,  138  S.  W.  274 ;   People  v. 
Eggleston,  186  Mich.  510,  152  N.  W.  944.    But  see  State  v.  Stebbins,  188  Mo. 
387,  87  S.  W.  400,  where  the  crime  was  robbery.    If  the  intent  is  first  formed, 
and  the  accused  drank  to  intoxication  prior  to  committing  the  crime,  drunk- 
enness is  no  excuse.     People  v.  Koerner,  117  App.  Div.  40,  102  N.  Y.  Supp. 
93 ;    State  v.  Truitt,  5  Pennewill  (Del.)  466,  62  Atl.  790. 

22  State  v.  Adams,  6  Pennewill  (Del.)  178,  65  Atl.  510.     In  manslaughter, 
specific  intent  is  not  an  element  and  drunkenness  is  no  defense.     Laws  v. 
State,  144  Ala.  118,  42  South.  40.     Voluntary  intoxication,  not  resulting  in 
fixed  or  settled "  frenzy  or  insanity,  either  permanent  or  intermittent,  does 
not  excuse  or  mitigate  any  degree  of  unlawful  homicide  below  murder  In  the 
first  degree.    Thomas  v.  State,  47  Fla.  99,  36  South.  161. 

23  Reg.  v.  Doody,  6  Cox,  Cr.  Cas.  463. 

a*  Siate  v.  Truitt,  5  Pennewill  (Del.)  460,  62  Atl.  790. 


§  246)  DRUNKEN  PERSONS — CAPACITY  TO  MAKE   A  WILL  559 

prosecution  for  murder  at  common  law ; 25  but  evidence  of  drunk- 
enness is  material  on  the  question  whether  a  homicide  is  statutory 
murder  in  the  first  degree,  in  those  jurisdictions  where  an  actual 
intent  to  kill  is  necessary.28  And,  by  the  weight  of  opinion,  evi- 
dence of  drunkenness  is  admissible  on  the  question  whether,  where 
there  was  sufficient  provocation  to  reduce  a  homicide  to  man- 
slaughter, the  accused  acted  under  the  influence  of  passion  caused 
by  the  provocation,  or  from  malice.27  If  a  person  is  made  drunk 
by  the  stratagem  or  fraud  of  another,  he  is  not  responsible.28 

CAPACITY  OF  DRUNKEN  PERSON  TO  MAKE  A  WILL 

246.  Drunkenness  renders  a  person  incompetent  to  make  a  will, 
if  it  affects  his  mind  to  such  an  extent  that  he  would  be 
incompetent  in  case  of  insanity. 

The  mere  fact  that  a  person  is  addicted  to  drink,  and  is  under 
guardianship,  as  incapable  of  managing  his  estate,  does  not  render 
him  incompetent  to  make  a  will.29  Nor  does  the  mere  fact  of 
drunkenness  at  the  time  of  making  a  will  render  it  invalid,  unless 
it  was  so  great  as  to  render  the  testator  incapable  of  understanding 
the  nature  and  effect  of  the  will,  within  the  rules  shown  in  treating 
of  insanity.30  If  it  has  this  effect,  the  will  is  void.31  Inebriety,  al- 
though long  continued,  and  resulting  occasionally  in  temporary  in- 
sanity, does  not  require  proof  of  lucid  intervals  to  give  validity  to 
the  party's  will,  as  is  required  where  general  insanity  is  proved. 
Therefore,  where  habitual  intoxication  is  shown,  there  will  be  no 


2  o  State  v.  McCants,  1  Speer  (S.  C.)  384;  Kelly  v.  State,  3  Smedes  &  M. 
(Miss.)  518. 

2«  State  v.  Johnson,  40  Conn.  136:  People  v.  Walker,  38  Mich.  156;  Hopt 
v.  Utah,  104  U.  S.  631,  26  L.  Ed.  873;  Willis  v.  Com.,  32  Grat.  (Va.)  929; 
Swan  v.  State,  4  Humph.  (Tenn.)  136;  Pirtle  v.  State,  9  Humph.  (Tenn.)  663, 
Clark,  Cr.  Law,  63,  64,  and  cases  there  cited. 

27  People  v.  Rogers,  18  N.  Y.  9,  72  Am.  Dec.  484;   Pearson's  Case,  2  Lewin, 
Crown  Cas.  144;  Mclntyre  v.  People,  38  111.  514;    Clark,  Cr.  Law,  65. 

28  Pearson's  Case,  2  Lewin,  Crown  Cas.  144. 

28  In  re  Slinger's  Will,  72  Wis.  22,  37  N.  W.  236;  Harrison  v.  Bishop,  131 
Ind.  161,  30  N.  E.  1069,  31  Am.  St.  Rep.  422. 

aoAndress  v.  Weller,  3  N.  J.  Eq.  604;  Kahl  v.  Schober,  35  N.  J.  Eq.  461; 
Starrett  v.  Douglass,  2  Yeates  (Pa.)  48;  Gardner  v.  Gardner,  22  Wend.  (N.  Y.) 
526,  34  Am.  Dec.  340;  Abb.  Desc.,  Wills  &  Adm.  236;  Hewitt's  Appeal,  55 
Md.  509. 

si  See  cases  cited  above. 


660  PERSONS  NON  COMPOTES  MENTIS  AND  ALIENS  (Ch.  15 

presumption  that  there  was  incapacitating  drunkenness  at  the  time 
the  will  was  made.  Such  a  condition  must  be  affirmatively  proved, 
or  the  presumption  of  capacity  will  prevail.82 


ALIENS 

247.  An  alien  is  a  person  born  out  of  the  jurisdiction  of  the  United 

States,  subject  to  some  foreign  government,  and  who  has 
not  been  naturalized  under  their  constitution  and  laws. 
Children  of  citizens  of  the  United  States  born  abroad  are 
citizens. 

248.  An  alien  domiciled  in  the  United  States  is  subject  to  the  laws 

of  the  United  States  and  of  the  state  in  which  he  resides 
to  the  same  extent  as  a  citizen. 

249.  An  alien  has  the  same  rights  as  a  citizen  with  respect  to  ac- 

quiring, holding,  and  disposing  of  personal  property,  and 
may  contract  in  relation  thereto,  and  sue  and  be  sued  on 
his  contracts. 

250.  An  alien  may  also  sue  and  be  sued  for  torts. 

251.  At  common  law,  an  alien  cannot  take  or  transmit  land  by  de- 

scent. But  he  can  take  by  devise  or  purchase  subject  to 
the  right  of  the  state  to  enforce  a  forfeiture  by  inquest 
and  office  found.  His  title  is  good  as  against  all  persons 
but  the  state,  and  is  good  as  against  the  state  until  office 
found.  And  an  alien  can  dispose  of  land  acquired  by 
purchase  or  devise,  and  his  grantee  or  devisee  will  take 
a  good  title  against  every  person  but  the  state.  The  com- 
mon law  in  this  respect  has  been  abolished  in  some  states, 
and  modified  in  others,  by  statute. 

252.  An  alien  enemy  cannot,  without  leave  of  the  government, 

make  any  fresh  contract,  or  enforce  any  existing  contract, 
during  the  continuance  of  war  between  his  government 
and  the  United  States.  Some  courts  require  adherence  to 
the  enemy  by  a  resident  alien  to  disqualify  him.  He  may 
be  sued  on  existing  contracts,  and  in  such  a  case  he  may 
defend.  Pre-existing  contracts  are  not  dissolved  by  the 
war  unless  they  are  of  a  continuing  nature,  and  antago- 
nistic to  the  rules  governing  a  state  of  war. 

» 2  In  re  Lee's  Will,  46  N.  J.  Bq.  193,  18  Atl.  525.    See,  also,  Swygart  v.  Wil- 
lard,  166  Ind.  25,  76  N.  E.  755. 


§§  247-252)  ALIENS  561 

An  alien  is  a  person  born  out  of  the  jurisdiction  of  the  United 
States,  subject  to  some  foreign  government,  and  who  has  not  been 
naturalized  under  their  constitution  and  laws.33  A  citizen  of  the 
United  States  does  not  cease  to  be  a  citizen  merely  by  residing  in 
a  foreign  country;  and  even  at  common  law,  as  well  as  by  an  act 
of  Congress,  children  of  citizens  of  the  United  States,  though  born 
abroad,  are  citizens  of  the  United  States,  and  not  aliens.34  Wheth- 
er a  citizen  has  a  right  to  expatriate  himself  is  a  question  upon 
which  there  has  been  much  conflict  of  opinion.  By  the  better  opin- 
ion, a  citizen  may  renounce  his  allegiance  at  pleasure,  if  he  acts  in 
good  faith,  and  becomes  a  citizen  and  subject  of  a  foreign  govern- 
ment.35 Some  authorities  say  that  he  cannot  do  so  without  the 
consent  of  the  government.36  It  seems  that  none  of  the  authorities 
hold  that  a  citizen  casts  off  his  allegiance  before  he  becomes  a 
citizen  or  subject  of  a  foreign  government.87  The  question  has 
been  set  at  rest  in  this  country,  and  in  some  others,  by  statutes  de- 

33  2  Kent,  Comm.  50;  Dawson's  Lessee  v.  Godfrey,  4  Cranch,  321,  2  L.  Ed. 
634;  Ainslie  v.  Martin,  9  Mass.  454.  A  foreigner,  who  holds  only  a  declara- 
tion of  intention,  is  still  subject  of  the  foreign  country.  United  States  v.  Bell 
(D.  C.)  248  Fed.  992. 

3*  Ludlam  v.  Ludlam,  26  N.  Y.  356,  84  Am.  Dec.  193;  Crane  v.  Reeder,  25 
Mich.  303;  Davis  v.  Hall,  1  Nott  &  McC.  (S.  C.)  292;  Campbell  v.  Wallace,  12 
N.  H.  362,  37  Am.  Dec.  219 ;  Rev.  St.  U.  S.  1878,  §  1993  (U.  S.  Comp.  St.  § 
3947),  declares:  "All  children'  heretofore  born,  or  hereafter  born  out  of  the 
limits  and  jurisdiction  of  the  United  States,  whose  fathers  were  or  may  be 
at  the  time  of  their  birth  citizens  thereof,  are  declared  to  be  citizens  of 
the  United  States ;  but  the  rights  of  citizenship  shall  not  descend  to  children 
whose  fathers  never  resided  in  the/ United  States."  The  child  of  one  who  has 
renounced  his  citizenship  of  the  United  States,  and  become  a  citizen  and 
subject  of  a  foreign  government,  born  after  such  renunciation,  is  not  a  citizen, 
but  an  alien.  Browne  v.  Dexter,  66  Cal.  39,  4  Pac.  913. 

SB  in  a  Kentucky  case  it  was  said:  "The  government,  for  the  purpose  of 
preventing  abuse,  and  securing  the  public  welfare,  may  regulate  the  mode  of 
expatriation.  But  where  it  has  not  prescribed  any  limitation  on  this  right, 
and  the  citizen  has  in  good  faith  abjured  his  country,  and  become  a  citizen  or 
subject  of  a  foreign  nation,  he  should,  as  to  his  native  government,  be  consid- 
ered as  denationalized."  Alsberry  v.  Hawkins,  9  Dana,  178,  33  Am.  Dec.  546. 
Secretary  Cass  went  so  far  as  to  deny  the  right  of  governments  to  prohibit  ex- 
patriation, except  where  the  act  of  expatriation,  if  recognized,  would  deprive 
the  government  of  the  power  to  punish  the  citizen  or  subject  for  an  offense 
previously  committed.  He  said:  "The  moment  a  foreigner  becomes  naturaliz- 
ed, his  allegiance  to  his  native  country  is  severed  forever.  He  experiences  a 
new  political  birth.  A  broad  and  impassable  line  separates  him  from  his  na- 
tive country."  Hal.  Int.  Law,  c.  29,  §  4. 

3  a  Ludlam  v.  Ludlam,  26  N.  Y.  356,  84  Am.  Dec.  193,  collating  the  authori- 
ties. 

»T  Ludlam  v.  Ludlam,  26  N.  Y.  356,  84  Am.  Dec,  193. 

TIFF.P.&  D.REL.(3o  ED.)— 36 


562  PERSONS  NON  COMPOTES   MENTIS  AND  ALIENS  (Cll.  15 

claring  the  right  of  expatriation  to  exist.38  An  alien  woman  who 
marries  a  citizen  of  the  United  States  becomes  a  citizen; 89  and  the 
same  is  true  of  an  alien  woman  whose  husband  becomes  natural- 
ized.40 

Aliens  are  Subject  to  the  Laws 

As  a  general  rule,  aliens  domiciled  in  this  country  are  just  as 
much  subject  to  the  laws  of  the  United  States,  and  of  the  state  in 
which  they  reside  or  may  be,  as  citizens.41  As  was  said  by  Mr. 
Justice  Field  in  Carlisle  v.  U.  S.,42  the  alien,  while  domiciled  in  the 
country,  owes  a  local  and  temporary  allegiance,  which  continues 
during  the  period  of  his  residence.  He  is  bound  to  obey  all  the 
laws  of  the  country  not  immediately  relating  to  citizenship,  during 
his  sojourn  in  it,  and  he  is  equally  amenable  with  citizens  for  any 
infractions  of  those  laws.  It  was  said  by  Daniel  Webster,  when  Sec- 
retary of  -State,  in  a  report  to  the  President :  "Independently  of  a 
residence,  with  intention  to  continue  such  residence,  independently 
of  any  domiciliation,  independently  of  the  taking  of  any  oath  of 
allegiance,  or  of  renouncing  any  former  allegiance,  it  is  well  known 
that,  by  the  public  law,  an  alien  or  a  stranger  born,  for  so  long  a 
time  as  he  continues  within  the  dominions  of  a  foreign  government, 
owes  obedience  to  the  laws  of  that  government,  and  may  be  punish- 
ed for  treason  or  other  crimes  as  a  native-born  subject  might  be,  un- 
less his  case  is  varied  by  some  treaty  stipulation."  4S 

s  s  Rev.  St  U.  S.  §  1999  (U.  S.  Comp.  St.  §  3955).  See,  on  this  question, 
Glenn,  Int.  Law,  129-131. 

so  Luhrs  v.  Eimer,  80  N.  Y.  171.  Evidence  that  an  alien  was  married  in 
Pennsylvania,  without  showing  whether  the  man  she  married  was  a  citizen  or 
an  alien  did  not  show  that  she  had  lost  her  status  as  an  alien.  Lehigh  Val- 
ley Coal  Co.  v.  Washko,  231  Fed.  42,  145  C.  C.  A.  230. 

40  Headman  v.  Rose,  63  Ga.  458. 

41  An  alien  residing  within  the  United  States  has  a  legal  right  to  frame  and 
circulate  a  petition  to  the  President  of  the  United  States  and  to  comment  fair- 
ly upon  governmental  policies  and  actions.     Van  Lonkhuyzen  v.  Daily  News 
Co.,  203  Mich.  570,  170  N.  W.  93. 

4s  16  Wall.  147,  21  L.  Ed.  426. 

is  6  Webst.  Works,  526,  quoted  with  approval  in  Carlisle  v.  U.  S.,  16  Wall. 
3.47,  21  L.  Ed.  426.  And  see  Olcott  v.  Maclean,  73  N.  Y.  223;  People  v.  Mc- 
Leod,  1  Hill  (N.  Y.)  377,  37  Am.  Dec.  328;  Id.,  25  Wend.  (N.  Y.)  483,  37  Am. 
Dec.  328 ;  State  v.  Neibekier,  184  Mo.  211,  83  S.  W.  523.  Notwithstanding  the 
comity  extended  to  war  vessels  and  their  commanders,  the  commander  of  an 
interned  German  war  vessel  may  be  punished  for  violation  of  Mann  Act  oc- 
curring within  United  States,  and  he  is  subject  to  jurisdiction  of  United 
States  courts  for  offense  of  smuggling  from  vessel  into  United  States  dutiable 
articles.  United  States  v.  Thierichens  (D.  C.)  243  Fed.  419. 


§§  247-252)  ALIENS  563 

This  rule  does  not  apply  to  foreign  friendly  sovereigns  and  their 
attendants,  nor  to  foreign  ambassadors,  ministers,  and  displomatic 
agents,  and  their  servants;  but  it  does  apply  to  consuls,  who  are 
mere  commercial  agents.44 

Rights  and  Liabilities  of  Alien  Friends 

An  alien  at  common  law,  as  well  as  under  the  statutes  of  the 
different  states,  has  substantially  the  same  powers  as  a  citizen 
with  respect  to  acquiring,  holding,  and  disposing  of  personal  prop- 
erty; and,  like  a  citizen,  he  may  make  contracts  with  respect  to 
personal  property,  and  sue  and  be  sued  thereon.48 

If  he  commits  a  tort,  he  may  be  sued  therefor,  and  he  may  sue 
to  recover  for  a  tort  committed  against  him,  to  the  same  exent 
as  a  citizen.46  It  has  even  been  held  that  one  alien  may  sue  an- 
other in  our  courts  upon  a  contract  made  abroad,  or  for  a  tort 
committed  abroad,  if  both  parties  are  transiently  here.47 

At  common  law  an  alien  is  under  disabilities  with  respect  to  ac- 
quiring and  holding  land ;  and  the  common  law  in  this  respect  is 
still  in  force  in  some  jurisdictions,  or  has  been  declared  in  whole 
or  in  part  by  statute.  An  alien  at  common  law  can  take  land  by  pur- 
chase or  by  devise,  but  he  takes  the  title  subject  to  the  right  of  the 
sovereign — with  us  the  state — to  enforce  a  forfeiture.  He  can  hold 
the  same  against  all  persons  but  the  state,  and  he  holds  as  against 
the  state  until  office  found;  that  is,  until  proper  proceedings  have 
been  instituted,  and  a  judgment  rendered  declaring  a  forfeiture. 
Upon  inquest  and  office  found,  but  not  before,  the  land  is  forfeited 

44  1  Kent,  Comm.  38  et  seq.;  State  v.  De  La  Foret,  2  Nott  &  McC.  (S.  C.)  217; 
Hespublica  v.  De  Longchainps,  1  Dall.  Ill,  1  L.  Ed.  59. 

*5  Thus,  an  alien  mortgagee,  independently  of  any  statute  or  any  treaty 
stipulations,  may  come  into  a  court  of  equity,  and  have  the  land  sold  to  sat- 
isfy the  mortgage  debt ;  the  demand  being  merely  a  personal  one.  Hughes  v. 
Edwards,  9  Wheat.  489,  6  L.  Ed.  142.  The  right  to  reside  in  a  foreign  country 
implies  the  right  to  labor  there  for  a  living.  Baker  v.  Portland,  5  Sawy.  566, 
Fed.  Gas.  No.  777. 

46  Crashley  v.  Press  Pub.  Co.,  179  N.  Y.  27,  71  N.  E.  258,  1  Ann.  Cas.  196,  af- 
firming 74  App.  Div.  118,  77  N.  Y.  Supp.  711 ;    Maiorano  v.  Baltimore  &  O.  R. 
Co.,  216  Pa.  402,  65  Atl.  1077,  21  L.  R.  A.  (N.  S.)  271,  116  Am.  St.  Rep.  778,  af- 
firmed  213  U.  S.  268,  29  Sup.  Ct.  424,  53  L.  Ed.  792 ;  Lewicki  v.  John  C.  Wiardi 
&  Co.  (D.  C.)  213  Fed.  647.    A  citizen  of  Mexico  there  converting  to  his  own 
use   property  of  a  citizen  of  Texas,   and  then   coming  to  the  state,  is   there 
amenable  to  the  state  citizen  for  the  wrong.    Mendiola  v.  Gonzales  (Tex.  Civ. 
App.)  185  S.  W.  389. 

47  Roberts  v.  Knights,  7  Allen  (Mass.)  449;  Dewitt  v.  Buchanan,  54  Barb.  (N. 
Y.)  31. 


564  PERSONS  NON  COMPOTES  MENTIS  AND  ALIENS  (Ch.  15 

to  the  state.*8  At  common  law,  and  unless,  as  is  the  case  in  some 
jurisdictions,  he  is  restrained  by  statute,  an  alien  can  devise  or 
convey  land  acquired  by  purchase  or  devise,  and  the  grantee  or 
devisee  will  take  a  good  title  as  against  every  person  except  the 
state.  The  title  remains  voidable,  however,  by  the  state.49 

But  an  alien,  at  common  law,  cannot  take  land  by  descent.80  He 
may  take,  as  it  is  said,  by  act  of  the  party,  but  not  by  operation  of 
law.  Nor  can  an  alien  transmit  land  by  descent.  No  one — not 
«ven  a  citizen — can  claim  by  inheritance  from  or  through  an  alien 
On  the  death  of  an  alien  intestate  his  land  vests  in  the  stat,e  im- 
mediately and  without  office  found.51  Nor,  at  common  law,  can  an 
alien  wife  claim  dower,52  or  an  alien  husband  claim  as  tenant  by 
the  curtesy.58 

The  doctrine  of  equitable  conversion  enables  a  devise  or  convey- 
ance of  land  to  a  trustee  to  sell  the  same,  and  pay  over  the  pro- 
ceeds to  an  alien;  for  such  a  devise  or  conveyance  is  not  of  land, 
but  of  personalty.5*  Under  the  same  doctrine,  a  devise  of  money 

«  See  Fairfax's  Devisee  v.  Hunter's  Lessee,  7  Cranch,  603,  620,  3  L.  Ed. 
453;  Doe  v.  Robertson,  11  Wheat  332,  6  L.  Ed.  488;  Fox  v.  Southack,  12  Mass. 
143 ;  Donaldson  v.  State,  182  Ind.  615,  101  N.  E.  485 ;  In  re  Palmer  Window 
Olass  Co.  (D.  C.)  183  Fed.  902;  Johnson  T.  Eversole  Lumber  Co.,  144  N.  C. 
717,  57  S.  E.  518.  rehearing  granted  147  N.  C.  249,  60  S.  E.  1129;  Wadsworth 
v.  Wadsworth,  12  N.  Y.  376 ;  Harley  v.  State,  40  Ala.  689 ;  Jackson  v.  Beach, 
1  Johns.  Cas.  (N.  Y.)  399. 

49  Crane  v.  Reeder,  21  Mich.  24,  4  Am.  Rep.  430 ;  Marx  v.  McGlynn,  88  N.  Y. 
357;  Emmett  v.  Emmett,  14  Lea  (Tenn.)  369;  Jones  v.  McMasters,  20  How.  21, 
15  L.  Ed.  805 ;  Harley  v.  State,  40  Ala.  689 ;  Hepburn  v.  Dunlop,  1  Wheat.  198, 
4  L.  Ed.  65. 

so  See  cases  above  cited.  And  slee  Dawson's  Lessee  v.  Godfrey,  4  Cranch, 
321,  2  L.  Ed.  634 ;  Orr  v.  Hodgson,  4  Wheat  453,  4  L.  Ed.  613;  Mooers  v.  White, 
6  Johns.  Ch.  (N.  Y.)  360;  Crane  v.  Reeder,  21  Mich.  24,  4  Am.  Rep.  430;  Good- 
rick  v.  Russell,  42  N.  Y.  177 ;  Connolly  v.  Reed,  22  Idaho,  29,  123  Pac.  213 ;  Ah- 
rens  v.  Ahrens,  144  Iowa,  486,  123  N.  W.  164,  Ann.  Cas.  1912A,  1098 ;  Scottish 
American  Mortgage  Co.  v.  Butler,  99  Miss.  56,  54  South.  666,  Ann.  Cas.  1913C, 
1236;  Moody  v.  Hagen,  36  N.  D.  471,  162  N.  W.  704,  L.  R.  A.  1918F,  947,  Ann. 
Cas.  1918A,  933. 

01  Slater  v.  Nason,  15  Pick.  (Mass.)  345;  Foss  v.  Crisp,  20  Pick.  (Mass.)  121; 
Jackson  v.  Fitz  Simmons,  10  Wend.  (N.  Y.)  9,  24  Am.  Dec.  198.  As  to  the  ef- 
fect of  a  common  ancestor's  alienage,  see,  also,  Jackson  v.  Green,  7  Wend.  (N. 
Y.)  333;  McCreery's  Lessee  v.  Somerville,  9  Wheat,  354,  6  L.  Ed.  109;  Mc- 
Carthy v.  Marsh,  5  N.  Y.  263;  McGregor  v.  Comstock,  3  N.  Y.  409;  McLean 
v.  Swanton,  13  N.  Y.  535. 

62  Sutliff  v.  Forgey,  1  Cow.  (N.  Y.)  89. 

OB  Foss  v.  Crisp,  20  Pick.  (Mass.)  121;  Quinn  v.  Ladd,  37  Or.  261,  59  Pac. 
457;  Hatfield  v.  Sneden,  54  N.  Y.  280;  Mussey  v.  Pierre,  24  Me.  559. 

•*  Meakings  v.  Cromwell,  5  N.  Y.  136.    A  devise  of  land  to  executors,  who 


§§  247-252)  ALIENS  565 

to  trustees  to  invest  the  same  in  land  to  be  conveyed  to  an  alien 
would  be  a  devise  of  land,  and  not  of  money,  and  would  vest  him 
with  a  defeasible  title  at  common  law,  or  would  be  void  under  a 
statute  declaring  void  a  devise  of  land  to  an  alien.65 

Such  are  the  rules  of  the  common  law;  but  in  most  states  they 
have  been  either  altogether  abolished,  or  greatly  modified  by  stat- 
ute. In  some  states  the  common  law  is  still  in  force,  while  in  oth- 
ers it  is  expressly  declared  by  statute.58  In  others,  nonresident 
aliens  are  not  given  the  right  to  acquire  or  hold  real  property, 
while  resident  aliens  are.87  And,  in  others,  aliens,  whether  resident 
or  nonresident,  are  given  the  same  right  as  native-born  subjects  as 
to  acquiring  and  holding  real  property,  either  by  descent  or  by  pur- 
chase, and  of  disposing  of  the  same  or  transmitting  by  descent.5'' 
The  laws  of  the  states  in  respect  to  the  disability  of  aliens  is  to 
some  extent  controlled  by  treaties  between  the  United  States  and 
foreign  governments.  Though  the  right  of  aliens  to  hold  real  prop- 
erty is  dependent  upon  the  laws  of  the  state  m  which  the  property 
is  situated,  the  state  law  must  give  way  if  it  conflicts  with  any  ex- 
isting treaty  between  the  government  of  the  United  States  and 
the  government  of  the  country  of  which  such  alien  is  a  subject  or 
citizen.  "If  the  citizen  or  subject  of  a  foreign  government  is  dis- 
qualified under  the  laws  of  a  state  from  taking,  holding,  or  trans- 
are  citizens,  in  trust  to  pay  the  income  to  aliens,  is  valid.  Marx  v.  McGlynn, 
88  N.  Y.  357;  Craig  v.  Leslie,  3  Wheat.  563,  4  L.  Ed.  460. 

65  Beekman  v.  Bonsor,  23  N.  Y.  298,  80  Am.  Dec.  269. 

66  See  Wunderle  v.  Wunderle,  144  111.  40,  33  N.  E.  195,  19  L.  R.  A.  84;  Zun- 
dell  v.  Gess  (Tex.)  9  S.  W.  879. 

67  Furenes  v.  Mickelson,  86  Iowa,  508,  53  N.  W.  416;  Donaldson  v.  State,  182 
Ind.  615,  101  N.  E.  485 :   Bennett  v.  Hibbert,  88  Iowa,  154,  55  N.  W.  93.    And 
see  Dougherty  v.  Kubat,  67  Neb.  269,  93  N.  W.  317,  construing  the  Nebraska 
statute,  which  excepts  from  the  rule  land  within  the  corporate  limits  of  cities 
and  towns.    Under  Rev.  St.  1913,  §§  6273,  6274,  relating  to  escheats,  nonresi- 
dent aliens  cannot  inherit  title  nor  right  of  possession  of  lands  in  the  state. 
State  v.  Thomas,  103  Neb.  147,  170  N.  W.  839,  rehearing  denied  103  Neb.  147, 
172  N.  W.  690.    Statutes  changing  the  common  law  and  allowing  aliens  to  take 
by  will  are  not  a  recognition  or  extension  of  any  previously  existing  right,  but 
a  new  grant  or  right  or  statutes  of  grace.    Moody  v.  Hagen,  36  N.  D.  471,  162 
N.  W.  704,  L.  R.  A.  1918F,  947,  Ann.  Gas.  1918A,  933. 

53  Hanrick  v.  Gurley,  93  Tex.  458,  54  S.  W.  347,  55  S.  W.  119,  56  S.  W.  330 ; 
Blythe  v.  Hlnckley,  127  Gal.  431,  59  Pac.  787,  affirmed  in  180  U.  S.  333,  21  Sup. 
Ct.  390,  45  L.  Ed.  597 ;  Sparks  v.  Bodensick,  72  Kan.  5,  82  Pac.  463 ;  Kelly  v. 
Pratt,  41  Misc.  Rep.  31,  83  N.  Y.  Supp.  636 ;  Price  v.  Greer,  89  Ark.  300,  116 
'  S.  W.  676, 118  S.  W.  1009 ;  Connolly  v.  Reed,  22  Idaho,  29,  125  Pac.  213 ;  Cris- 
well  v.  Noble,  61  Misc.  Rep.  483,  113  N.  Y.  Supp.  954,  affirmed  134  App.  Div. 
994,  119  N.  Y.  Supp.  1122. 


566  PERSONS  NON   COMPOTES  MENTIS  AND  ALIENS  (Ch.  15 

ferring  real  property,  such  disqualification  will  be  removed  if  a 
treaty  between  the  United  States  and  such  foreign  government 
confers  the  right  to  take,  hold,  or  transfer  real  property."  °9  In 
some  states  the  Constitution  expressly  prohibits  the  Legislature 
from  depriving  resident  foreigners  of  the  rights  enjoyed  by  native- 
born  citizens  with  respect  to  the  acquisition,  enjoyment,  and  trans- 
mission of  property.60  Doubtless,  in  all  of  the  states,  aliens  may 
acquire,  hold,  and  dispose  of  personal  property,  and  make  and  en- 
force contracts  relating  to  personal  property  to  the  same  extent  as 
citizens.81 

Alien  Enemies 

An  alien  enemy  is  one  who  is  a  subject  of  some  government  with 
which  the  United  States  is  at  war.62  Though  he  may  reside  in  the 
United  States,  yet,  by  reason  of  his  owing  allegiance  to  the  hostile 
state,  he  becomes  impressed  with  the  character  of  an  enemy.  Un- 
der the  Alien  Enemy  Act  of  1798,63  an  alien  enemy  may  be  arrested 
and  restrained  or  removed  from  the  country.64  Nevertheless  an 
alien  enemy,  resident  in  the  United  States  and  conducting  himself 
properly,  is  entitled  to  the  protection  of  the  law  and  may  assert  the 


6»  Wunderle  v.  Wunderle,  144  111.  40,  33  N.  E.  195,  19  L.  R.  A.  84,  and  cases 
there  cited.  See  Hauenstein  v.  Lynhara,  100  U.  S.  483,  25  L.  Ed.  628 ;  Chirac 
v.  Chirac's  Lessee,  2  Wheat.  259,  4  L.  Ed.  234 ;  LEHMAN  v.  STATE,  45  Ind. 
App.  330,  88  N.  E.  365,  Cooley  Cas.  Persons  and  Domestic  Relations,  293; 
Ahrens  v.  Ahrens,  144  Iowa,  486,  123  N.  W.  164,  Ann.  Cas.  1912A,  1098 ;  Fisch- 
er v.  Sklenar,  101  Neb.  553,  163  N.  W.  861 ;  Pierson  v.  Lawler,  100  Neb.  783, 
161  N.  W.  419 ;  Cohen  v.  Cohen,  47  App.  D.  C.  129. 

eo  See  State  v.  Smith,  70  Cal.  153,  12  Pac.  121 ;  Nicrosi  v.  Phillippi,  91  Ala. 
299,  8  South.  561. 

«i  See  Taylor  v.  Carpenter,  3  Story,  458,  Fed.  Cas.  No.  13,784;  Cleveland, 
C.,  C.  &  St.  L.  Ry.  Co.  v.  Osgood,  36  Ind.  App.  34,  73  N.  E,  285 ;  Franco-Texan 
Land  Co.  v.  Chaptive  (Tex.)  3  S.  W.  31.  An  alien  may  take  a  devise  of 
realty,  which  by  the  terms  of  the  will  is  converted  into  personalty,  at  the 
time  the  devise  takes  effect.  Appeal  of  Emery,  83  Conn.  235,  76  Atl.  529. 

ez  Taylor  v.  Albion  Lumber  Co.,  176  Cal.  347,  168  Pac.  348,  L.  R.  A.  1918B, 
185 ;  Ex  parte  Graber  (D.  C.)  247  Fed.  882 ;  Krachanake  v.  Acme  Mfg.  Co.,  175 
N.  C.  435,  95  S.  E.  851,  L.  R.  A.  1918E,  801,  Ann.  Cas.  1918E,  340.  A  New  Jer- 
sey corporation,  though  composed  entirely  of  German  stockholders,  did  not, 
on  declaration  of  war  between  the  United  States  and  Germany,  cease  to  be  a 
domestic  corporation  and  become  an  alien  enemy.  Fritz  Schulz,  Jr.,  Co.  T. 
Kaimes  &  Co.,  99  Misc.  Rep.  626,  164  N.  Y.  Supp.  454,  affirmed  100  Misc.  Rep. 
G97.  166  N.  Y.  Supp.  567. 

os  Rev.  St.  U.  S.  §§  4067-4070  (U.  S.  Comp.  St.  §§  7615-7618). 

«*  De  Lacey  v.  United  States,  249  Fed.  625.  161  C.  C.  A,  535,  L.  R.  A.  1918E, 
1011 ;  Miuotto  v.  Bradley  (D.  C.)  252  Fed.  600. 


§§  247-252)  -ALIENS  .  567 

right  in  the  courts.68  As  a  general  rule,  an  alien  enemy  cannot, 
during  the  continuance  of  hostilities,  make  any  fresh  contract,  or 
enforce  an  existing  contract.68  If  he  is  sued  on  his  contract,  how- 
ever, he  may  defend.67  In  New  York  it  has  been  held  that,  to  de- 
feat a  suit  by  a  resident  subject  of  a  foreign  hostile  power,  it  must 
appear  that  he  is  adhering  to  the  enemy;  that  aliens  resident  in  the 
United  States  at  the  time  of  war  breaking  out  between  their  coun- 
try and  the  United  States,  or  who  come  to  reside  in  the  United 
States  after  the  breaking  out  of  war,  under  an  express  permission, 
or  permission  implied  from  their  being  allowed  to  remain,  may  sue 
and  be  sued  as  in  time  of  peace,  since  a  license  and  protection  will 
be  implied  from  their  being  allowed  to  remain.68 


«»  Mittelstadt  v.  Kelly,  202  Mich.  524,  168  N.  W.  501. 

86  Scholefield  v.  Eichelberger,  7  Pet.  586,  8  L.  Ed.  793 ;  The  Rapid,  8  Cranch, 
155,  3  L.  Ed.  520 ;  Mutual  Ben.  Life  Ins.  Co.  v.  Hillyard,  37  N.  J.  Law,  444,  18 
Am.  Rep.  741;  Wright  v.  Graham,  4  W.  Va.  430;  Masterson  v.  Howard,  18 
Wall.  99,  21  L.  Ed.  764;  Philips  v.  Hatch,  1  Dill.  571,  Fed.  Gas.  No.  11,094; 
Brooke  v.  Filer,  35  Ind.  402;  Blackwell  v.  Willard,  65  N.  O.  555,  6  Am.  Rep. 
749;  Semmes  v.  City  Fire  Ins.  Co.,  36  Conn.  543,  Fed.  Gas.  No.  12,651. 

67  Dorsey  v.  Thompson,  37  Md.  25;  McVeigh  v.  U.  S.,  11  Wall.  259,  20  L.  Ed. 
80;  Watts,  Watts  &  Co.  v.  Unione  Austriaca  Di  Navigazione,  248  U.  S.  9,  39 
Sup.  Ct.  1,  63  L.  Ed.  100,  3  A.  L.  R.  323,  reversing  229  Fed.  136,  143  C.  C.  A. 
412;  The  Oropa  (D.  C.)  255  Fed.  132;  Mixer  v.  Sibley,  58  111.  61;  McNair 
v.  Toler,  21  Minn.  175. 

«s  Clarke  v.  Morey.  10  Johns.  (N.  T.)  69.  Declaration  of  existence  of  war  is 
not  alone  sufficient  ex  proprio  vigore  to  suspend  remedies  for  the  enforcement 
of  debts  and  dues  between  citizens  and  subjects  of  an  alien  enemy.  Nor  can 
the  courts  declare  a  public  policy  as  to  permitting  alien  enemies  to  sue  during 
the  war  for  debts  contracted  during  peace ;  that  being  a  function  of  Congress. 
Fritz  Schulz,  Jr.,  Co.  v.  Raimes  &  Co.,  99  Misc.  Rep.  626,  164  N.  Y.  Supp.  454, 
affirmed  100  Misc.  Rep.  697,  166  N.  Y.  Supp.  567.  A  nonresident  alien  enemy 
cannot  sue.  Rothbarth  v.  Herzfeld,  .179  App.  Div.  865,  167  N.  Y.  Supp.  199,  re- 
versing 100  Misc.  Rep.  470,  166  N.  Y.  Supp.  744 ;  Speidel  v.  N.  Barstow  Co.  (D. 
C.)  243  Fed.  621.  His  rights  are  suspended  during  the  war.  Rothbarth  v. 
Herzfeld,  supra ;  Taylor  v.  Albion  Lumber  Co.,  176  Cal.  347,  168  Pac.  348,  L. 
R.  A.  1918B,  185.  The  disability  to  sue  does  not  attach  to  a  resident  alien. 
Speidel  v.  N.  Barstow  Co.  (D.  C.)  243  Fed.  621;  Arndt-Ober  v.  Metro- 
politan Opera  Co.,  182  App.  Div.  513,  169  N.  Y.  Supp.  944.  A  pending  suit  may, 
however,  be  stayed  during  the  war.  Speidel  v.  N.  Barstow  Co.  (D.  C.)  243 
Fed.  621 ;  City  Nat.  Bank  of  Selma  v.  Dresdner  Bank  of  Bremen  (D.  C.)  255 
Fed.  225 ;  In  re  Henrichs'  Estate  (Cal.)  179  Pac.  883.  The  Alien  Property  Cus- 
todian appointed  under  the  Trading  with  the  Enemy  Act  (Act  Oct.  6.  1917  [U. 
S.  Comp.  St.  1918,  U.  S.  Comp.  St.  Ann.  Supp.  1919,  §§  3115y2a-3115%j])  may 
intervene  in  an  action  by  an  alien  enemy  and  continue  its  prosecution.  Nord 
Deutscher  Ins.  Co.  of  Hamburg,  Germany,  v.  John  L.  Dudley,  Jr.,  Co.  (Sup.) 
169  N.  Y.  Supp.  303,  affirmed  183  App.  Div.  887,  169  N.  Y.  Supp.  1106. 


568  PERSONS  NON  COMPOTES  MENTIS  AND  ALIENS  (Ch.  15 

Whether  a  pre-existing  contract  is  dissolved  by  the  war  depends 
upon  whether  it  is  essentially  antagonistic  to  the  laws  governing 
a  state  of  war.  If  it  is  of  a  continuing  nature,  like  a  contract  of 
partnership,  or  of  an  executory  character  merely,  and  in  the  per- 
formance of  its  essential  features  would  violate  such  laws,  it  is 
dissolved ;  but  if  not,  and  rights  have  become  vested  under  it,  the 
contract  will  either  be  qualified,  or  its  performance  suspended,  ac- 
cording to  its  nature,  so  as  to  strip  it  of  its  objectionable  features, 
and  save  such  rights.  The  tendency  of  adjudication  is  to  preserve, 
and  not  to  destroy,  contracts  existing  before  the  war.8* 

Naturalisation 

An  alien  may  cease  to  be  such,  and  become  a  citizen  by  natural- 
ization in  compliance  with  our  laws.  The  Constitution  of  the 
United  States  provides  that  "Congress  shall  have  power  to  estab- 
lish an  uniform  rule  of  naturalization."  70  This  grant  of  power 
is  exclusive,  and  deprives  a  state  of  the  power  to  enact  laws  on  the 
subject.71  But,  so  far  as  a  state  alone  is  concerned,  it  may  pass 
laws  entitling  an  unnaturalized  alien  to  all  the  rights  which  the 
Constitution  and  laws  of  the  state  attach  to  the  character  of  a  citi- 
zen.72 Under  this  grant,  Congress  has  enacted  naturalization  laws, 
by  which  aliens  may  be  admitted  to  citizenship.71 


«»  Clark,  Cont  218.  See  Mutual  Ben.  Life  Ins.  Co.  v.  Hlllyard,  37  N.  J.  Law, 
444,  18  Am.  Rep.  741  ;  Griswold  v.  Waddington,  15  Johns.  (N.  Y.)  57;  Semmes 
v.  City  Fire  Ins.  Co.,  36  Conn.  543,  Fed.  Cas.  No.  12,651  ;  Bank  of  New  Orleans 
v.  Matthews,  49  N.  Y.  12;  Cohen  v.  New  York  Mut.  Life  Ins.  Co.,  50  N.  Y.  610, 
10  Am.  Rep.  522;  Washington  University  v.  Finch,  18  Wall.  106,  21  L.  Ed.  818; 
Whelan  v.  Cook,  29  Md.  1  ;  Dorsey  v.  Kyle,  30  Md.  512,  96  Am.  Dec.  617  ;  Dor- 
sey  v.  Thompson,  37  Md.  25.  Declaration  of  existence  of  war  is  not  sufficient, 
ex  proprio  vigore,  to  avoid  all  obligations  between  citizens  and  subjects  of  an 
alien  enemy.  Fritz  Schulz,  Jr.,  Co.  v.  Raimes  &  Co.,  99  Misc.  Rep.  626,  164  N. 
Y.  Supp.  454,  affirmed  100  Misc.  Rep.  697,  166  N.  Y.  Supp.  567.  Powers  of  at- 
torney for  collection  of  money,  executed  prior  to  declaration  of  war,  render- 
ing principals  enemy  aliens,  continue  to  be  valid,  notwithstanding  state  of 
war.  Keppelmann  v.  Keppelmann,  89  N.  J.  Eq.  390,  105  Atl.  140.  As  to  the 
commercial  rights  of  alien  enemies  generally,  see  Trading  with  the  Enemy  Act 
Oct.  6,  1917  (U.  S.  Comp.  St.  1918,  U.  S.  Comp.  St.  Ann.  Supp.  1919, 


TO  Article  1,  §  8,  cl.  4. 

»i  Chirac  v.  Chirac's  Lessee,  2  Wheat.  259,  4  L.  Ed.  234;  Thurlow  v.  Massa- 
chusetts, 5  How.  585,  12  L.  Ed.  256. 

TZ  Per  Taney,  C.  J.,  in  Dred  Scott  v.  Sandford.  19  How.  393,  15  L.  Ed.  691. 

T»  U.  S.  Comp.  St.  1901,  §§  2165-2174.  And  see  Act  June  29,  1906,  c.  3592, 
34  Stat  596. 


§§  247-252)  ALIENS  569 

When  an  alien  is  naturalized  under  the  laws  of  the  United  States, 
he  becomes  not  only  a  citizen  of  the  United  States,  but  also  a 
citizen  of  the  state  in  which  he  resides.  Under  the  Fourteenth 
Amendment  of  the  Constitution,  which  overrides  state  laws,  "all 
persons  born  or  naturalized  in  the  United  States,  and  subject  to 
the  jurisdiction  thereof,  are  citizens  of  the  United  States,  and  of 
the  state  wherein  they  reside." 

Naturalization  has  a  retroactive  effect,  and  removes  the  effect  of 
the  party's  alienage,  so  as  to  confirm  his  title  to  land  acquired  prior 
thereto,  and  to  waive  all 'liability  to  forfeiture  by  the  state.74  But 
it  cannot  remove  his  disability  to  inherit  retroactive!*-,  for  the 
capacity  to  take  by  descent  must  exist  at  the  time  the  descent  hap- 
pens.75 

i 

7*  Jackson  v.  Beach,  1  Johns.  Gas.  (N.  Y.)  399. 

TO  People  v.  Conklin,  2  Hill  (N.  Y.)  67.  "Naturalization,"  It  was  said  in  this 
case,  "though  it  may  confirm  a  defective  title,  will  not  confer  an  estate." 


PART  V 

MASTER  AND  SERVANT 


CHAPTER  XVI 
MASTER    AND   SERVANT 

253-255.  The  Relation  Defined. 

256.  Statutory  Regulation. 

257-258.  Creation  of  the  Relation. 

25&-261.  Termination  of  the  Relation. 

262-263.  Remedies   for   Breach  of  Contract — Damages. 

264.  In   Equity — Specific    Performance — Injunction. 

265-271.  Rights,   Duties,   and  Liabilities   Inter   Se. 
272-275.  Master's   Liability   for   Injuries   to    Servant. 

276.  Rights  of  Master  against  Third  Persons. 

277.  Rights  of  Servant  against  Third  Persons, 
278-279.  Master's  Liability  to  Third  Persons. 
280-281.  Servant's  Liability  to  Third  Persons. 


THE  RELATION  DEFINED 

253.  Servants  may  be  classified  as— 

(a)  Apprentices  and 

(b)  Hired  servants. 

254.  An  apprentice  is  a  person,  usually  a  minor,  bound  to  a  master 

to  learn  an  art  or  trade,  and  to  serve  him  during  the  time 
of  his  apprenticeship. 

255.  The  relation  of  master  and  servant,  other  than  apprentices,  de- 

pends entirely  upon  agreement  between  the  parties,  ex- 
press or  implied.  It  exists  where  one  person  enters  into 
the  service  of  another,  and  devotes  to  him  his  personal 
labor. 

The  relation  of  master  and  servant  has  from  a  very  early  period 
been  classed  with  that  of  husband  and  wife,  parent  and  child,  and 
guardian  and  ward,  as  one  of  the  domestic  relations;  and  it  is 
still  so  treated  in  modern  text-books,  and  in  some  of  the  modern 
codes.  This  classification  is  accurate  enough  when  applied  to 
slaves,  apprentices,  and  domestic  servants,  but  it  is  not  accurate 

(570) 


§§  253-255)  THE   RELATION  DEFINED  571 

when  applied  to  other  servants,  like  clerks  in  stores  and  offices, 
laborers,  employes  of  railroad  companies,  and  many  other  employes 
who  are  subject  to  the  law  governing  the  relation  of  master  and 
servant.1  Accuracy  in  classification,  however,  must,  in  this  as  in 
many  other  cases,  yield  to  usage,  and  the  law  applicable  to  all 
kinds  of  servants  will  be  considered. 

Blackstone  after  referring  to  slavery,  and  showing  that  it  can- 
not exist  in  England,  divides  servants  into  (1)  menial  servants, 
so  called  from  being  intra  mcenia,  or  domestics,  who  are  generally 
hired  by  the  year;  (2)  apprentices,  who  are  usually  bound  for  a 
term  of  years,  by  deed  indented  or  indentures,  to  serve  their  mas- 
ters, and  to  be  maintained  and  instructed  by  them;.  (3)  laborers, 
who  are  only  hired  by  the  day  or  the  week,  and  do  not  live  intra 
moenia,  as  part  of  the  family ;  and  (4)  stewards,  factors,  and  bail- 
iffs, who  are  employed  rather  in  a  superior  and  ministerial  capacity, 
and  whom  the  law  considers  as  servants  pro  tempore,  with  regard 
to  such  of  their  acts  as  affect  their  master's  or  employer's  proper- 
ty.2 Reeve  divides  servants  into  (1)  slaves,  (2)  apprentices,  (3) 
menial  servants,  (4)  day  laborers,  and  (5)  agents  of  any  kind.3 
Kent  divides  them  into  (1)  slaves,.  (2)  hired  servants,  and  (3)  ap- 
prentices.4 This  is  the  best  classification,  as  hired  servants  include 
all  the  other  kinds  mentioned  by  Blackstone  and  Reeve,  except 
slaves  and  apprentices.  Under  the  constitution  of  the  United 
States,  slavery  can  no  longer  exist  in  this  country,5  and  it  is  there- 
fore unnecessary  to  consider  that  class.  There  remain,  then,  to  be 
considered  apprentices  and  hired  servants. 

Apprentices 

Apprentices  are  persons,  generally  infants,  bound  to  a  master  for 
a  term  of  years  to  learn  some  art  or  trade,  and  to  serve  the  mas- 
ter and  be  maintained  by  him  during  the  term  of  the  apprentice- 
ship. It  has  been  said  that  at  common  law  an  apprentice,  to  be 


i  Frank  v.  Herold,  63  N.  J.  Eq.  443,  52  Atl.  152,  where  it  is  said  that  any 
person  who  works  for  another  for  a  salary  is  a  servant  in  the  eye  of  the 
law. 

21  Bl.  Comm.  425-427. 

» Reeve,   Dom.    Rel.    (4th   Ed.)   418. 

*  1  Kent,  Comm.  247-. 

o  Amend,  art.  13,  of  the  federal  Constitution,  declares  that  "neither  slavery 
nor  involuntary  servitude,  except  as  a  punishment  for  crime  whereof  the 
party  shall  have  been  duly  convicted,  shall  exist  within  the  United  States, 
or  any  place  subject  to  their  jurisdiction." 


572  MASTER  AND  SERVANT  (Ch.  16 

holden,  must  be  bound  by  deed;6  but  this  is  doubtful,  and  there 
are  cases  which  hold  that  a  writing  not  under  seal  is  sufficient.7 
At  common  law,  indentures  of  apprenticeship  are  executed  by  the 
father  or  guardian  of  the  minor  and  the  master.  The  former  are 
bound  that  the  apprentice  shall  render  the  services  contracted  for 
and  the  master  is  bound  to  teach  the  art  or  trade  agreed  upon,  and 
do  whatever  else  he  may  have  bound  himself  to  do.  For  a  breach 
by  either  party,  the  other  may  maintain  an  action  for  damages. 
At  common  law  the  minor  need  not  join  the  indenture;  and  by 
the  better  opinion,  even  were  he  to  do  so,  he  would  not  be  bound. 
For  a  breach  on  his  part,  the  remedy  is  against  the  parent.8  The 
common  law  in  relation  to  apprenticeship  is  no  longer  of  much  im- 
portance, for  the  subject  is  almost  entirely  regulated  by  statute 
both  in  England  and  in  this  country.  There  are  statutes  in  most 
states,  if  not  in  all,  providing  for  the  binding  out  of  apprentices 
by  contract  between  the  parent  or  guardian  and  the  master.  And 
in  most  states,  if  not  in  all,  there  are  statutes  providing  for  the 
binding  out  of  poor  persons  by  the  overseers  of  the  poor  or  other 
public  officers.  The  master  has  a  right  to  the  services  of  his  ap- 
prentice, and  to  all  wages  earned  by  the  apprentice  from  others ;  * 
but  he  cannot  assign  the  services  of  the  apprentice  to  another.1* 
The  right  to  the  services  of  the  apprentice  gives  the  master,  as 
in  the  case  of  other  servants,  a  right  of  action  against  any  person 
who  entices  the  apprentice  away  from  him,  or  knowingly  harbors 
him  if  he  has  left  without  cause.11  It  also  gives  him  a  right  of 
action  against  any  one  who  wrongfully  injures  the  apprentice,  and 
thereby  causes  a  loss  of  his  services.1* 

Hired  Servants 

The  relation  of  master  and  servant,  other  than  master  and  ap- 
prentice, depends  upon  a  contract  of  hiring,  express  or  implied, 
between  the  parties.18  The  servant  agrees  with  the  master  to  ren- 
der certain  services,  and  the  master  agrees  to  pay  therefor.  Or  the 
service  may  be  gratuitous.  "A  servant  is  one  who  is  employed  to 

•  Reeve,  Dom.  Rel.  (4th  Ed.)  420. 

r  Crombie  v.  McGrath,  139  Mass.  550,  2  N.  E.  100. 

»  See  Reeve,  Dom.  Rel.  (4th  Ed.)  420-423,  and  American  notes. 

•  Reeve,  Dom.  Rel.  (4th  Ed.)  423.    And  see  Bardwell  v.  Purrington,  107 
Mass.  419. 

10  Reeve,  Dom.  Rel.  (4th  Ed.)  425,  426,  and  notes;    Randall  v.  Roteh,  29- 
Mass.  (12  Pick.)  107;    Turner  v.  Smithers,  3  Houst.   (Del.)  430. 

11  Post,  p.  642.  i2  Post,  p.  C42.  i«  Post,  p.  574. 


STATUTORY  REGULATION  573 

render  personal  services  to  his  employer,  otherwise  than  in  the  pur- 
suit of  an  independent  calling,  and,  who  in  such  service,  remains 
entirely  under  the  control  and  direction  of  the  latter,  who  is  called 
his  'master.' " 14  The  term  "servant"  includes,  not  only  menial  and 
domestic  servants,  but  all  other  employes  who  are  hired  or  who 
volunteer  to  perform  services  for  their  employer,  and  who  remain 
under  his  direction  and  control  during  the  time  for  which  they  are 
hired.15  Thus,  it  includes  a  bookkeeper  or  clerk  in  a  business  office, 
a  salesman  in  a  shop,  railroad  employes,  workmen  in  factories,  etc. 
All  such  employes  are  subject  to  the  law  governing  the  relation  of 
master  and  servant. 


STATUTORY  REGULATION 

256.  The  state,  by  virtue  of  the  police  power,  may  make  such  regu- 
lations controlling  the  relation  of  master  and  servant  as 
may  be  necessary  to  preserve  the  public  health,  safety,  or 
general  welfare. 

In  many  states  statutes  have  been  enacted  regulating  the  rela- 
tion of  master  and  servant  in  matters  pertaining  to  the  employment 
of  children  and  worfien,  and  the  hours  of  labor,  and  intended  to 
insure  the  public  welfare  and  the  health  and  safety  of  employes.16 
There  are  also  federal  statutes  relating  to  hours  of  labor  of  railroad 
employes,17  the  character  of  appliances  used  in  railroads,18  and  the 
liability  of  employers.19  Such  statutes  have  been  held  to  be  valid 


i*  Civ.  Code  Cal.  §  2009.  The  relation  of  master  and  servant  exists  when 
the  master  not  only  has  the  right  to  select  his  servant,  but  has  power 
to  remove  and  discharge  him.  A  master  is  one  who  stands  to  another  in 
such  relation  that  he  not  only  controls  the  result  of  the  work  of  that  other, 
but  also  may  direct  the  manner  in  which  it  shall  be  done.  McColligan  v. 
Pennsylvania  R,  Co.,  214  Pa.  229,  63  Atl.  792,  6  L.  R.  A,  (N.  S.)  544,  112  Am. 
St.  Rep.  739. 

i 5  Frank  v.  Herold,  63  N.  J.  Eq.  443,  52  Atl.  152 ;  McColligan  v.  Pennsyl- 
vania R.  Co.,  214  Pa.  229,  63  Atl.  792,  6  L.  R.  A.  (N.  S.)  544,  112  Am.  St.  Rep. 
739. 

IB  See  the  statutes  of  the  various  states. 

IT  Hours  of  Service  Act  March  4,  1907  (U.  S.  Comp.  St.  §§  8677-8680); 
Adamson  Law  (Act  Sept.  3,  5,  1916  [U.  S.  Comp.  St.  §§  8680a-8680d]),  fixing 
an  eight  hour  day  as  the  basis  of  computing  compensation  for  train  men. 

is  Safety  Appliance  Act  March  2,  1893  (U.  S.  Comp.  St.  §§  8605-8612). 

i»  Employers'  Liability  Act  (U.   S.  Comp.   St.  §§  8657-8665.) 


574  MASTER  AND  SERVANT  (Ch.  16 

exercises  of  the  police  power,20  and  unless  open  to  some  special 
objection  are  constitutional.21 

Of  similar  character  are  the  Workmen's  Compensation  Acts 
adopted  by  many  states,  materially  modifying  the  common-law  rules 
as  to  the  liability  of  the  master  for  injuries  to  a  servant.22 


CREATION  OF  THE  RELATION 

257.  The  relation  of  master  and  servant,  except  in  the  case  of  ap- 

prenticeship, is  created  by  a  contract  of  hiring  between  the 
parties.  This  contract  is  governed  by  the  principles  of 
law  which  apply  to  contracts  generally. 

(a)  The  contract  may  be  either — 

(1)  Express,  as  where  it  is  evidenced  by  written  or  spoken 

words,  or 

(2)  Implied,  as  where  it  is  evidenced  by  conduct. 

(b)  To  be  binding  as  between  the  parties,  there  must  be  a  consid- 

eration. 

(c)  The  contract  is  subject  to  the  general  rules  in  regard  to  the 

capacity  of  parties  to  contract. 

(d)  And  it  is  subject  to  the  general  rules  concerning  mistake, 

fraud,  etc. 

(e)  The  object  of  the  agreement  must  not  be  unlawful. 

(f)  Under  the  statute  of  frauds,  a  contract  of  hiring  that  cannot 

be  performed  within  a  year  must  be  in  writing. 

258.  If  a  person  enters  the  service  of  another  at  the  other's  request, 

the  relation  of  master  and  servant  exists  for  the  time  being, 
though  the  services  are  intended  to  be  gratuitous;'  but  in 
such  a  case  there  is  no  right  to  wages. 

20  People  v.  Smith,  108  Mich.  527.  66  N.  W.  382,  32  L.  R.  A.  853,  62  Am. 
St  Rep.  715;    Andricus'  Adm'r  v.  Pineville  Coal  Co..  121  Ky.  724,  90  S.  W. 
233;   Green  v.  American  Car.  etc.,  Co.,  163  Ind.  135,  71  N.  E.  268;    Lenahan 
v.  Pittston  Coal  Min.  Co.,  218  Pa.  311,  67  Atl.  642,  12  L.  R.  A.  461,  120  Am. 
St.  Rep.  885. 

21  Ex  parte  Kair,  28  Nev.  425,  82  Pac.  453,  6  Ann.  Cas.  SQ3  (construing 
Laws  1903,  p.  33,  c.  10)  ;    State  v.  Livingston  Concrete  Bldg.  &  Mfg.  Co.,  34 
Mont.  570,  87  Pac.  980,  9  Ann.  Cas.  204   (construing  Laws  1905,  p.   105,   e. 
50) ;   Wenham  v.  State,  65  Net).  394,  91  N.  W.  421,  58  L.  R.  A.  825  (construin.-.' 
Act  March  31,  1899  [Laws  1899,  p.  362,  c.  107]  relating  to  employment  of 
women) ;    People  v.  City  of  Chicago,  256  111.  558,  100  N.  E.  194,  43  L.  R.  A. 
(N.   S.)  954,  Ann.  Cas.  1913E,  305  (relating  to  hours  of  labor  of  women) ; 
Holden  v.  BCardy,  169  U.  S.  366,  18  Sup.  Gt  383,  42  L,  Ed.  780,  affirming 

22  See  post,  p.  635. 


§§  257-258)        CREATION  OP  THE  RELATION  575 

The  relation  of  master  and  apprentice  has  already  been  explained. 
To  constitute  the  relation  of  master  and  servant  in  other  cases,  a 
contract  or  agreement  between  them,  express  or  implied,  is  essen- 
tial.23 The  relation  can  only  arise  upon  an  agreement  between  the 
parties.  A  man  cannot  compel  another  to  labor  for  "him ;  nor,  on 
the  other  hand,  can  a  person  perform  services  for  another  without 
his  consent,  and  compel  him  to  pay  for  them.24  So,  it  has  been  held 
that  if  a  servant  of  one  man~  engages  in  temporary  work  for  anoth- 
er, on  the  false  representation  of  the  latter  that  his  master  has 
directed  him  to  do  so,  he  does  not  thereby  become  a  servant  of  the 
other,  so  as  to  be  held  to  assume  the  risk  of  negligence  on  the  part 
of  the  other  servants  of  such  person.20  A  person  may  be  a  servant 
of  another  though  his  services  are  merely  gratuitous.  If  a  person 
engages  in  the  service  of  another  at  the  latter's  express  or  implied 
request,  though  only  for  a  temporary  purpose,  and  with  the  under- 
standing that  he  is  to  receive  no  compensation,  he  will  not  be  en- 
titled to  wages,  but  the  relation  of  master  and  servant  will  exist,  for 
other  purposes.  For  instance,  he  will  be  entitled  to  recover  like  any 
other  employe  for  personal  injuries  caused  by  the  master's  negli- 
gence; 26  and  he  will  become  a  fellow  servant  of  other  employes  so 
as  to  assume  the  risk  of  their  negligence ; 27  and  the  master  will  be 
liable  to  third  persons  for  his  negligence  or  wrongful  acts  in  the 
course  of  the  employment.28 

State  v.  Holden,  14  Utah,  71,  46  Pac.  756,  37  L.  R,  A.  103  (holding  Utah 
"eight-hour  law"  constitutional) ;  People  v.  Lochner,  177  N.  Y.  145,  60  N.  E. 
373,  101  Am.  St.  Rep.  773;  Green  v.  Appleton  Woolen  Mills,  162  Wis.  145, 
155  N.  W.  958  (Laws  1911,  c.  479,  §  1,  subd.  2,  relating  to  employment  of 
children) ;  United  States  v.  Baltimore  &  O.  R.  Co.  (D.  C.)  226  Fed.  220  (Hours 
of  Service  Act  [U.  s.  Comp.  St.  §§  8677-8680]).  See,  also,  Sumey  v.  Craig 
Mountain  Lumber  Co.,  27  Idaho,  721,  152  Pac.  181,  and  Indiana  Quar- 
ries Co.  v.  Farmer,  184  Ind.  411,  110  N.  E.  549,  relating  to  Employers'  Lia- 
bility Acts.  But  see  People  v.  Williams,  189  N.  Y.  131,  81  N.  E.  778,  12 
L.  R,  A.  (N.  S.)  1130,  121  Am.  St.  Rep.  854,  12  Ann.  Gas.  798  (declaring 
unconstitutional  a  statute  relating  to  the  employment  of  women  betweeu 
9  p.  m.  and  8  a.  m.). 

23  Pennsylvania  Co.  v.  Dolan,  6  Ind.  App.  109,  32  N.  E.  802,  51  Am.  St  Rep. 
289 ;    Sax  v.  Detroit,  G.  H.  &  M.  R.  Co.,  125  Mich.  252,  84  N.  W.  314,  84  Am. 
St.  Rep.  572 ;   Parker  v.  Wilson,  179  Ala.  361,  60  South.  150,  43  L.  R.  A.  (N. 
S.)  87;    Louisville  &  N.  R.  Co.  v.  Pendleton's  Adm'r,  126  Ky.  605,  104  S.  W. 
382,  31  Ky.  Law  Rep.  1025. 

24  Clark,  Cont.  30;   Bartholomew  v.-  Jackson,  20  Johns.  (N.  Y.)  28,  11  Am. 
Dec.  237 ;   Taylor  v.  Laird,  Law  J.  25  Exch.  329 ;    Caldwell  v.  Eneas,  2  Mill, 
Const.   (S.  C.)  348,   12  Am.  Dec.  681. 

20  Kelly  y.  Johnson,  128  Mass.  530,  35  Am.  Rep.  398. 

zs  Johnson  v.  Water  Co.,  71  Wis.  553,  37  N.  Wl  823,  5  Am.  St  Rep.  243. 

27  Post,  p.  621.  28  p°st,  P.  645. 


576  MASTER  AND  SERVANT  (Ch.  l€ 

Implied  Contract 

The  contract  need  not  be  express — that  is,  it  need  not  be  evi- 
denced by  written  or  spoken  words;  but,  like  other  contracts,  it 
may  be  implied  from  the  conduct  of  the  parties.  Thus,  if  a  man 
labors  for  another,  at  the  other's  request,  or  with  the  other's  knowl- 
edge and  acquiescence,  and  under  such  circumstances  that  the  oth- 
er ought  reasonably  to  know  that  compensation  is  expected,  the 
law  will  imply  a  contract,  and  compensation  may  be  recovered.20 
The  contract  in  such  cases  is  implied  as  a  matter  of  fact,  and  there 
must  be  nothing  to  show  that  no  contract  was  intended.80  If  serv- 
ices are  performed  for  another  without  his  knowledge,  no  contract 
will  be  implied.81  If  the  parties  stand  in  a  family  or  quasi  family  re- 
lation towards  each  other,  and  the  services  consist  in  household  or 
other  family  duties  performed  by  one  for  the  other,  the  presumption 
is  that  no  compensation  was  intended ;  and,  in  order  to  recover  there- 
for, a  contract  must  be  shown  affirmatively.32  The  presumption  in 

2 »  Clark,  Cont  25;  Day  v.  Caton,  119  Mass.  513,  20  Am.  Rep.  347;  Huck 
v.  Flentye,  80  111.  258 ;  Tucker  v.  Preston,  60  Vt.  473,  11  Atl.  726 ;  McMillan 
v.  Page,  71  Wis.  655,  38  N.  W.  173 ;  Jincey  v.  Winfield's  Adm'r,  9  Grat  (Va.) 
708;  Curry  v.  Curry,  114  Pa.  367,  7  Atl.  61. 

so  See  note  to  Orr  v.  Brown,  16  C.  C.  A.  201;  Cicotte  v.  Catholic  Church, 
60  Mich.  552,  27  N.  W.  682;  Gross  v.  Cadwell,  4  Wash.  670,  30  Pac.  1052. 
Thus,  it  has  been  held  that  where  parties  are  in  the  habit  of  mutually 
receiving  and  rendering  services,  with  no  present  thought  of  charging  or 
paying  therefor,  no  recovery  can  be  had  by  either  for  services  rendered,  un- 
less a  special  contract  is  shown,  or  there  are  circumstances  which  rebut 
the  inference  arising  from  their  course  of  conduct  that  the  services  were 
intended  to  be  gratuitous.  Gross  v.  Cadwell,  supra.  See,  also,  Potter  v. 
Carpenter,  76  N.  Y.  157;  Dunlap  v.  Allen,  90  111.  108;  Covel  v.  Turner,  74 
Mich.  408,  41  N.  W.  1091.  In  Raysor  v.  Lumber  Co.,  26  S.  C.  610,  2  S.  E. 
119,  the  plaintiff,  who  was  already  employed  by  defendant,  demanded  an 
increase  of  wages  to  commence  January  1,  1885,  and  gave  due  notice  to  de- 
fendant's agent  that  he  would  leave  unless  such  increase  was  made.  The 
agent  did  not  assent,  but  said  that  he  would  give  an  answer  in  two  or  three 
days.  He  failed  to  give  any  answer  for  several  months,  and  allowed  plain- 
tiff in  the  meanwhile  to  continue  at  work.  Then  plaintiff  was  told  that  his 
salary  would  be  increased  as  demanded,  hut  to  commence  May  1,  1885.  It 
was  held  that  the  silence  of  the  agent  did  not  raise  any  implication  of 
assent  on  the  part  of  the  defendant  to  an  increase  of  salary  from  January 
1st,  since  the  services,  in  the  absence  of  an  express  new  contract,  would  be 
referred  to  the  existing  contract 

«i  Taylor  y.  Laird,  Law  J.  25  Exch.  329;  .Bartholomew  v.  Jackson,  20 
Johns.  (N.  Y.)  28,  11  Am.  Dec.  237 ;  Willis  v.  Railway  Co.,  72  Mich.  160,  40 
N.  W.  205. 

82  Clark,  Oont.  28,  and  cases  there  cited ;  note  to  Orr  v.  Brown,  16  C.  C.  A« 
202,  collecting  cases;  Ulrich  v.  Arnold,  120  Pa.  170,  13  Atl.  831;  Heffron 
V.  Brown,  155  111.  322,  40  N.  E.  583 ;  Dunlap  v.  Allen,  90  111.  108 ;  Harris  T. 


§§  257-258)         CREATION  OF  THE  RELATION  577 

such  cases  may  be  rebutted,  however,  not  only  by  showing  an  ex- 
press contract,  but  also  by  showing  circumstances  and  conduct 
from  which  it  may  be  inferred  that  there  was  an  agreement  for  com- 
pensation.88 

If,  after  expiration  of  a  contract  of  hiring  for  a  specified  period, 
the  servant  continues  in  the  master's  service  with  his  consent  or  ac- 
quiescence, without  any  further  express  agreement,  a  new  contract* 
of  hiring,  on  the  same  terms  and  for  the  same  period  as  the  former 
one,  will  be  implied,  unless  there  are  special  circumstances  showing 
a  contrary  intention.84  Thus,  if  the  nature  of  the  services  to  be 
rendered  is  entirely  different,  the  presumption  will  not,  as  a  rule, 


Smith,  79  Mich.  54,  44  N.  W.  169,  6  L.  R.  A.  702.  This  principle  Is  clearly 
applicable  where  the  parties  occupy  the  relation  of  parent  and  child.  See 
Ulrich  v.  Arnold,  120  Pa.  170,  13  Atl.  831 ;  Bantz  v.  Bantz.  52  Md.  693 :  Cow- 
an v.  Musgrave,  73  Iowa,  384.  35  N.  W.  496;  Howe  v.  North,  69  Mich.  272, 
37  N.  W.  213 ;  AUen  v.  Allen,  60  Mich.  635,  27  N.  W.  702 ;  Bostwick  v.  Bost- 
wick's  Estate,  71  Wis.  273,  37  N.  W.  405;  Curry  v.  Curry,  114  Pa.  367,  7  Atl. 
61.  The  same  presumption  arises  where  one  of  the  parties  stands  in  loco 
parentis  to  the  other.  Harris  v.  Smith,  79  Mich.  54,  44  N.  W.  169,  6  L.  R.  A. 
702 ;  Dodson  v.  McAdams,  96  N.  C.  149,  2  S.  E.  453,  60  Am.  Rep.  408;  Ormsby 
v.  Rhoades,  59  Vt.  505,  10  Atl.  722;  Barhite's  Appeal.  126  Pa.  404,  17  Atl. 
617.  And  it  arises  where  the  parties  are  but  distantly  related,  or  not  re- 
lated at  all,  but  the  connection  between  them  is  of  a  household  or  family  na- 
ture. Feiertag  v.  Feiertag,  73  Mich.  297,  41  N.  W.  414;  Bruner  v.  Mosner, 
116  App.  Div.  298,  101  N.  Y.  S.  538 ;  Collar  v.  Patterson,  137  111.  403,  27  N. 
E.  604 ;  Cone  v.  Cross,  72  Md.  102,  19  Atl.  391 ;  Disbrow  v.  Durand,  54  N.  J. 
Law,  343,  24  Atl.  545,  33  Am.  St.  Rep.  678 ;  Gerz  v.  Weber,  151  Pa.  396,  25  Atl. 
82 ;  Collyer  v.  Collyer,  113  N.  Y.  442,  21  N.  E.  114 ;  Covel  v.  Turner,  74  Mich. 
408,  41  N.  W.  1091. 

ss  See  Heffron  v.  Brown,  155  111.  322,  40  N.  E.  583;  McMillan  v.  Page,  71 
Wis.  655,  38  N.  W.  173;  Guild  v.  Guild,  15  Pick.  (Mass.)  129. 

s^Appleton  Waterworks  Co.  v.  City  of  Appleton,  132  Wis.  563,  113  N.  W. 
44;  Fish  v.  Marzluff,  128  111.  App.  549;  Houston  Ice  &  Brewing  Co.  v. 
Nicolini  (Tex.  Civ.  App.)  96  S.  W.  84;  Mendelson  v.  Bronner,  124  App.  Div. 
396,  108  N.  Y.  Supp.  807 ;  Treffinger  v.  M.  Groh's  Sons,  112  App.  Div.  250,  98 
N.  Y.  Supp.  291;  Douglass  v.  Merchants'  Ins.  Co.,  118  N.  Y.  484,  23  N.  E. 
806,  7  L.  R.  A.  822 ;  INGALLS  v.  ALLEN,  132  111.  170,  23  N.  E.  1026 ;  Cooley 
Cas.  Persons  and  Domestic  Relations,  300;  Weise  v.  Supervisors,  51  Wis. 
564,  8  N.  W.  295 ;  Wallace  v.  Floyd,  29  Pa.  184,  72  Am.  Dec.  620 ;  Nicholson 
v.  Patchin,  5  Cal.  474;  Huntingdon  v.  Claffln,  38  N.  Y.  182;  Standard  Oil 
Co.  v.  Gilbert,  84  Ga.  714,  11  S.  E.  491,  8  L.  R.  A.  410;  Lalande  v.  Aldrich, 
41  La.  Ann.  307,  8  South.  28;  Grover  &  Baker  Sewing  Mach.  Co.  v.  Bulkley, 
48  111.  189;  Sines  v.  Superintendents  of  Poor,  58  Mich.  503,  25  N.  W.  485; 
Adams  v.  Fitzpatrick,  56  Super.  N.  Y.  580,  5  N.  Y.  Supp.  181 ;  Hodge  v. 
Newton,  14  Daly  (N.  Y.)  372 ;  McCullough  Iron  Co.  v.  Carpenter,  67  Md.  554, 
11  Atl.  176;  Lister's  Agricultural  Chemical  Works  v.  Pender,  74  Md.  15,  21 
Atl.  686. 

TIFF.P.&  D.REL.(3o  ED.)— 37 


578  MASTER  AND  SERVANT  (Ch.  16 

arise."  And  generally  the  presumption,  being  one  of  fact,  may  be 
rebutted  by  evidence  of  circumstances,  showing  a  contrary  inten- 
tion.89 

Validity  of  the  Contract — Mutual  Assent — Consideration — Capacity  of 

Parties — Reality  of  Consent — Illegality 

The  contract  of  hiring  is  governed  by  all  the  principles  of  law 
which  apply  to  other  contracts.  In  the  first  place,  there  must  be 
mutual  assent,  or  offer  and  acceptance.87  As  has  just  been  seen, 
however,  mutual  assent  may  be  implied  from  the  conduct  of  the 
parties.88 

There  must  also  be  a  valid  consideration.  The  promise  of  one 
party  to  serve,  and  the  promise  of  the  other  to  permit  him  to  do  so, 
and  to  pay  him,  are  each  a  sufficient  consideration  for  the  other, 
for  a  promise  is  a  sufficient  consideration  for  a  promise.89  The 
promises  must  be  mutually  binding,  however;  for,  if  there  is  no 
mutuality,  a  contract  of  hiring  is  as  void  as  any  other  contract 
would  be.40 

The  principles  of  law  in  regard  to  the  capacity  of  the  parties  to  a 
contract  apply  with  full  force  to  a  contract  of  hiring.*1  A  contract 
of  hiring  by  an  infant  does  not  bind  him,  but  is  voidable  at  his  op- 
tion.42 He  may  at  any  time  repudiate  the  contract,  and  recover 
on  the  quantum  meruit  for  the  services  rendered.  The  adult  is 
bound  if  the  infant  chooses  to  hold  him.48 

»•  INGALLS  v.  ALLEN,  132  111.  170,  23  N.  E.  1028,  Cooley  Gas.  Persons  and 
Domestic  Relations,  300;  Burton  v.  Behan,  47  La.  Ann.  117,  16  South.  769; 
Ewing  v.  Jnnson,  57  Ark.  237,  21  S.  W.  430 ;  Reed  v.  Swift,  45  Cal.  255. 

86  INGALLS  v.  ALLEN,  132  111.  170,  23  N.  E.  1026,  Cooley  Cas.  Persons  and 
Domestic  Relations,  300 ;  Hale  v.  Sheehan,  41  Neb.  102,  59  N.  W.  554 ;  Home 
Fire  Ins.  Co.  v.  Barber,  67  Neb.  644,  93  N.  W.  1024,  60  L.  R,  A.  927,  108 
Am.  St.  Rep.  716;  Dickinson  v.  Norwegian  Plow  Co.,  96  Wis.  376,  71  N.  W. 
606;  Id.,  101  Wis.  157,  76  N.  W.  1108. 

37  Hooker  v.  Hyde,  61  Wis.  204,  21  N.  W.  52;  King  v.  Seaboard  Air  Line 
Ry.  Co.,  140  N.  C.  433,  53  S.  E.  237 ;  International  Harvester  Co.  v.  Campbell. 
43  Tex.  Civ.  App.  421,  96  S.  W.  93 ;  Smith  v.  Williams,  123  Mo.  App.  479,  100 
S.  W.  55.  See,  as  to  offer  and  acceptance  generally,  Clark,  Cont.  p.  21. 

ssAnte,  p.  67G.    And  see  Smith  v.  Williams,  123  Mo.  App.  479,  100  S.  W.  55. 

8 »  Clark,  Cont.  165.  The  dismissal  of  a  suit  of  damages,  brought  by  an 
Injured  employe  of  a  railroad  company,  Is  a  sufficient  consideration  for  a 
contract  for  his  future  employment  so  long  as  his  services  are  satisfactory. 
Lake  Erie  &  W.  Ry.  v.  Tierney,  29  Ohio  Clr.  Ct.  R.  83. 

40  Clark,  Cont.  168-171. 

«  Clark,  Cont.  210  et  seq. 

*2  As  to  contracts  of  Infants  generally,  see  ante,  p.  471. 

4s  Clark.  Cont.  221  et  seq. ;  Derocher  v.  Continental  Mills,  58  Me.  217,  4 
Am.  Rep.  286. 


§§  257-258)        CREATION  OP  THE  RELATION  579 

The  contract  of  hiring  is  affected,  like  other  contracts,  by  fraud, 
duress,  and  mistake,44  and,  like  other  contracts,  it  must  not  be  ille- 
gal.45 For  instance,  a  contract  to  serve  another  in  a  business  which 
is  unlawful,  as  in  selling  intoxicating  liquors  in  violation  of  law,  or 
irr  conducting  a  gambling  house  or  lottery  or  bawdy  house,  could 
not  be  enforced,46  unless  the  servant  were  ignorant  of  the  purpose 
or  object  rendering  the  agreement  unlawful.  In  the  latter  case  Re 
could  recover  for  services  rendered.47 

Necessity  for  Written  Contract — Statute  of  Frauds 

Unless  writing  is  required  by  some  statute,  a  contract  may  be 
either  in  writing  or  oral,  or  as  we  have  seen,  it  may  be  implied  from 
conduct.  Under  the  statute  of  frauds,  a  contract  not  to  be  per- 
formed within  a  year  must  be  in  writing,  or  no  action  can  be  main- 
tained upon  it.48  This  applies,  of  course,  to  contracts  of  hiring.  A 
contract  for  a  year's  service,  to  commence  on  a  future  day,  is  within 
the  statute ; 49  and  so  is  a  contract  to  begin  as  soon  as  the  employe 
can,  and  actually  beginning  a  week  after  the  agreement.50  If  the 
service  is  for  a  year,  and  it  is  agreed  that  it  is  to  commence  at  once, 
or  if  no  time  for  commencement  of  the  service  is  named,  in  which 
case  it  is  to  commence  at  once,  the  contract  is  not  within  the  stat- 
ute.51 It  has  been  held  that  a  contract  for  a  year's  service, 
to  commence  the  day  after  the  agreement  is  made,  is  within  the 
statute,  for  the  law  does  not  regard  fractions  of  a  day; 52  but  there 
are  decisions  to  the  contrary.53  If  the  agreement  may  be  perform- 

4  *  See  Clark,  Cont.  288  et  seq. 

*6A  contract  to  give  one  permanent  employment  is  not  contrary  to  public 
policy.  Pennsylvania  Co.  v.  Dolan,  6  Ind.  App.  109,  32  N.  E.  802,  51  Am.  St. 
Rep.  289. 

46  See  Clark,  Cont.  374;    Spurgeon  v.  McElwain.  6  Ohio,  442,  27  Am.  Dec. 
266;   Sullivan  v.  Horgan,  17  R.  1. 109,  20  Atl.  232,  9  L.  R.  A.  110;    Bierbaucr 
v.  Wirth  (C.  C.)  5  Fed.  336:   The  Pioneer,  Deady,  72  Fed.  Cas.  No.  11,177. 

47  Clark,  Cont.  475;  Emery  v.  Kempton,  2  Gray  (Mass.)  257;  Roys  v.  John- 
son, 7  Gray  (Mass.)  162 

4s  Clark,  Cont.  109. 

4»  Snelling  v.  Lord  Huntingfield,  1  Cromp,  M.  &  R.  19;  Bracegirdle  v. 
Heald,  1  Barn.  &  Aid.  723;  Sutcliffe  v.  Atlantic  Mills,  13  R.  I.  480,  43  Am. 
Rep.  39;  Kleeman  v.  Collins.  9  Bush.  (Ky.)  460;  Nones  v.  Homer,  2  Hilt. 
(N.  Y.)  116;  Broadwell  v.  Getman,  2  Denio  (N.  Y.)  87;  Comes  v.  Lamson,  16 
Conn.  246:  Sharp  v.  Rhiel,  55  Mo.  97;  Hearne  v.  Chadbourne,  65  Me.  302. 

BO  Sutcliffe  v.  Atlantic  Mills,  13  R.  I.  480,  43  Am.  Rep.  39. 

6i  Russell  v.  Slade,  12  Conn.  455. 

52Dicksou  v.  Frisbee,  52  Ala.  165,  23  Am.  Rep.  565;  Cawthorne  v.  Cordrey, 
13  C.  B.  (N.  S.)  406. 

53  Billington  v.  Cahill,  51  Hun,  132,  4  N.  Y.  SUM?.  660. 


580  MASTER  AND   SERVANT  (Ch.  16 

ed  within  the  year,  it  is  not  within  the  statute.54  If  services  are 
performed  under  a  contract  within  the  statute,  there  may  be  a  re- 
covery on  the  quantum  meruit.85 

TERMINATION  OF  THE  RELATION 

259.  A  contract  of  hiring  is  discharged  or  terminated  like  any  other 

contract.    It  may  be  discharged,  for  instance— 

(a)  By  agreement.    And  this  may  be — 

(1)  By  waiver,  cancellation,  or  rescission. 

(2)  By  substituted  agreement. 

(3)  By  the  happening  of  conditions  subsequent  in  accord- 

ance with  the  express  or  implied  terms  of  the  contract. 

(b)  By  performance. 

(c)  By  breach. 

(d)  By  impossibility  of  performance  under  some  circumstances. 

260.  A  breach  of  the  contract  by  the  master  entitles  the  servant  to 

leave.    Such  a  breach  may  be — 

(a)  By  renouncing  the  contract. 

•(b)  By  rendering  performance  or  further  performance  impos- 
sible. 

(c)  By  breach  of  particular  terms  of  the  contract,  express  or  im- 
plied, as  by  failure  to  pay  the  wages  agreed,  or  by  ill  treat- 
ment of  the  servant 

261.  A  breach  of  the  contract  by  the  servant  entitles  the  master  to 

discharge  him.    Such  a  breach  may  be — 

(a)  By  renunciation  of  the  contract. 

(b)  By  rendering  performance  or  further  performance  by  him 

impossible. 

(c)  By  breach  of  particular  terms  of  the  contract,  express  or 

implied,  as — 

(1)  By  incompetency. 

(2)  By  criminal  or  grossly  immoral  conduct. 

(3)  By  willful  disobedience. 

(4)  By  habitual  neglect. 

5  *  Clark,  Cont.  109-111.  As  an  agreement  to  work  for  a  company  "for 
five  years,  or  so  long  as  A.  shall  continue  to  be  agent  for  the  company," 
Roberts  v.  Rockbottom  Co.,  7  Mete.  (Mass.)  47;  or  an  agreement  to  employ 
a  person  so  long  as  he  may  be  disabled  from  an  injury  which  he  has  re- 
ceived. East  Tennessee,  V.  &  G.  R.  Co.  v.  Staub,  7  Lea.  (Tenn.)  397. 

s 3  Clark,  Cont.  Ill,  112,  notes,  and  cases  cited;  Baker  v.  Lauterbach,  68 
Md.  G-l,  11  All.  703 ;  Towsley  v.  Moore,  30  Ohio  St.  185,  27  Am.  Rep.  434. 


§§  259-261)  TERMINATION   OF   THE   RELATION  581 

The  relation  of  master  and  servant  may  be  determined  in  various 
ways.  It  is  determined  whenever  the  contract  of  hiring  is  dis- 
charged, and  therefore  we  must  refer  to  the  principles  of  law  in 
regard  to  the  discharge  of  contracts  generally. 

Discharge  of  Contract  by  Agreement 

In  the  first  place,  a  contract  of  hiring  may,  like  other  contracts, 
be  discharged  by  agreement  between  the  parties.  And  this  may 
be  either  (1)  by  subsequent  agreement  waiving,  canceling,  or  re- 
scinding the  contract,  or  substituting  a  new  agreement;  or  (2) 
by  the  happening  of  conditions  subsequent  expressed  or  implied 
in  the  contract.68 
Same — Waiver,  Cancellation,  or  Rescission — Substituted  Agreement 

A  contract  of  hiring  may  always  be  discharged  by  an  agreement 
between  the  parties  to  it  that  it  shall  no  longer  be  binding  upon 
them;57  but  this  agreement  is  subject  to  the  rule,  which  governs 
all  other  simple  contracts,  that  there  must  be  a  consideration.58 
So,  too,  a  resignation,  tendered  by  the  employe  and  accepted  by  the 
employer,  is,  in  the  absence  of  fraud,  duress,  or  mistake,  a  binding 
contract,  which  terminates  the  employment.59  A  substitution  of 
a  new  contract  of  hiring  is  a  waiver  of  the  prior  contract,  and  the 
rights  of  the  parties  are  thereafter  determined  by  the  new  con- 
tract.60 


ce  See  Clark,  Cont.  607-627. 

«  Pray  v.  Standard  Electric  Co.,  155  Mass.  561,  30  N.  E.  464.  Therefore, 
if  a  servant  hired  for  a  specified  term  is  discharged  with  his  consent,  he  can- 
not complain,  nor  recover  salary  for  the  remainder  of  the  term.  Southmayd 
v.  Insurance  Co.,  47  Wis.  517,  2  N.  W.  1137;  Grannemann  v.  Kloepper,  24  111. 
App.  277. 

58  Clark,  Cont.  608. 

5»  New  York  Life  Ins.  Co.  v.  Thomas,  47  Tex.  Civ.  App.  150,  103  S.  W.  423; 
Ivey  v.  Bessemer  City  Cotton  Mills,  143  N.  C.  189,  55  S.  B.  613.  If  a  resig- 
nation is  not  accepted  as  offered,  the  acceptance  is  not  binding  on  the  em- 
ploye. Capps  v.  University  of  Chicago,  166  111.  App.  485. 

60  Clark,  Cont.  610.  A  contract  of  hiring  may  be  thus  discharged  either  by 
the  making  of  an  entirely  new  and  independent  contract,  or  by  the  in- 
troduction of  new  terms.  In  the  latter  case  the  new  contract  consists  of 
the  new  terms  and  so  mucli  of  the  original  contract  as  remains  unchanged. 
Clark,  Cont.  611.  There  need  be  no  express  waiver  of  the  old  contract,  or 
of  some  of  its  terms,  to  constitute  a  discharge  by  substituted  agreement.  A 
new  contract  inconsistent  with  the  original  impliedly  discharges  the  latter. 
Clark,  Cont.  611,  612,  and-  cases  there  collected.  A  mere  change  in  the  duties 
of  the  servant  in  no  wise  affects  a  contract  prescribing  a  period  of  serv- 
ice. Kinney  v.  Calumet  Pub.  Co.,  167  111.  App.  369. 


582  MASTER  AND  SERVANT  (Ch.  16 

Same — Happening  of  Conditions  Subsequent 

A  contract  ->f  hiring,  like  other  contracts,  may  contain  within 
itself  express  or  implied  provisions  for  its  determination  under  cer- 
tain circumstances.  Such  provisions  are  called  "conditions  subse- 
quent." 

The  contract  may  give  one  of  the  parties  the  right  to  terminate 
it  upon  the  nonfulfillment  of  a  specified  term.  If  the  term  is  not 
fulfilled,  and  the  party  terminates  the  contract,  there  is  no  breach, 
but  the  contract  is  rightfully  determined.01  If  a  servant  is  em- 
ployed for  a  specified  time  to  carry  on  the  master's  business,  or 
do  other  work,  "to  the  master's  satisfaction,"  the  master  has  a 
right  to  discharge  him  whenever  he  becomes,  in  good  faith,  dis- 
satisfied with  him.62  Some  courts  hold  that  the  master  is  the  sole 
judge  whether  the  servant  is  satisfactory,  and  that  the  courts  can- 
not determine  whether  his  dissatisfaction  was  reasonable.63  A  hir- 
ing to  last  so  long  as  each  party  is  satisfied  is  a  hiring  at  will,  and 
may  be  terminated  at  any  time  by  either.64  So  the  parties  may  in- 

«i  Clark,  Cont.  622-627. 

«2  Corgan  v.  Geo.  F.  Lee  Coal  Co.,  218  Pa.  3$6.  67  Atl.  655,  120  Am.  St 
Rep.  891,  11  Ann.  Cas.  838;  Beissel  v.  Vermillion  Farmers'  Elevator  Co.,  102 
Minn.  229,  113  N.  W.  575,  12  L.  R.  A.  (N.  S.)  403 ;  Frary  v.  American  Rubber 
Co.,  52  Minn.  264,  53  N.  W.  1156,  18  L.  R.  A.  644;  Anvil  Min.  Co.  v.  Hum- 
ble, 153  U.  S.  540,  14  Sup.  Ct.  876;  38  L.  Ed.  "814.  It  is  sufficient  if  the  master 
was  in  good  faith  dissatisfied,  though  his  dissatisfaction  is  unreasonable. 
Starkweather  v.  Emerson  Mfg.  Co.,  132  Iowa,  266,  109  N.  W.  719.  But  see 
Lake  Erie  &  Vf.  Ry.  Co.  v.  Tierney,  29  Ohio  Cir.  Ct.  R.  83  (judgment  affirmed 
in  75  Ohio  St.  565,  80  N.  E.  1128),  where  it  is  held  that  dissatisfaction  with 
the  services  of  an  employ^  engaged  to  render  services  as  long  as  they  were 
satisfactory  such  as  to  justify  a  discharge  must  be  a  reasonable  dissatisfac- 
tion, and  not  an  arbitrary  one,  and  the  good  faith  of  the  company  in  claim- 
ing such  services  to  be  unsatisfactory  will  not  alone  justify  the  discharge, 
if  the  services  rendered  were,  in  fact,  such  as  ought  to  have  been  satisfactory 
to  a  reasonable  employer.  The  master  is  liable  as  for  a  wrongful  discharge, 
if  the  alleged  dissatisfaction  is  not  in  good  faith.  Farmer  v.  Golde  Clothes 
Shop,  225  Mass.  260,  114  N.  E.  303. 

68  International  Harvester  Co.  v.  Boatman,  122  111.  App.  474;  Krom- 
pier  v.  Spivek,  170  111.  App.  621;  Saxe  v.  Shubert  Theatrical  Co.,  57  Misc. 
Rep.  620,  108  N.  Y.  Supp.  683 ;  Watkins  &  Thurman  v.  Napier,  44  Tex.  Civ. 
App.  432,  98  S.  W.  904;  Allen  v.  Mutual  Compress  Co.,  101  Ala.  574,  14 
South.  362;  Koehler  v.  Buhl,  94  Mich.  496,  54  N.  W.  157;  Crawford  v.  Mail 
&  Express  Pub.  Co.,  163  N.  Y.  404,  57  N.  E.  616,  distinguishing  Smith  v.  Rob- 
son,  148  N.  Y.  252,  42  N.  E.  677,  in  which  the  contract  expressly  provided  that 
there  must  be  good  faith  on  the  part  of  the  master  in  determining  the  ques- 
tion of  dissatisfaction. 

64  Evans  v.  Bennett,  7  Wis.  404 ;  Booth  v.  Ratcliffe,  107  N.  C.  6,  12  S.  El 
112;  Wilmington  Coal  Min.  &  Mfg.  Co.  v.  Lamb,  90  III.  465. 


§§  259-261)  TERMINATION    OP   THE   RELATION  583 

troduce  into  their  contract  a  provision  that  .the  occurrence  of  'a 
specified  event  shall  terminate  the  contract,  and  discharge  them 
both  from  further  liability  under  it.65 

A  contract  of  hiring  may  contain  a  provision,  express  or  implied, 
making  it  determinable  at  the  option  of  one  or  either  of  the  par- 
ties upon  certain  terms.  Where  the  contract  expressly  provides 
that  it  may  be  terminated  by  either  party  on  giving  a  specified  no- 
tice, and  the  servant  is  dismissed  on  such  notice,  the  contract  is 
discharged,  and  not  broken.66  Terms  like  this  need  not  necessari- 
ly be  expressed  in  the  contract;  but  they  may  be  imported  into  it 
by  custom  and  usage.67  A  custom  or  usage,  however,  can*  never 
affect  a  contract  if  it  is  inconsistent  with  its  terms.68  If  the  con- 
tract fixes  no  time  during  which  it  is  to  last,  and  no  time  is  fixed 
by  law  or  by  usage,  it  may  be  determined  at  the  will  of  either  party 
at  any  time;  the  hiring  being  construed  as  a  hiring  at  will.69  The 
circumstances  may  show  a  contrary  intention,  and  the  intentions 

66  Fuller  v.  Downing,  120  App.  Div.  36,  104  N.  Y.  Supp.  991,  where  the  con- 
tract authorized  the  employer  to  terminate  the  contract  on  four  months'  no- 
tice, in  case  he  wished  to  form  a  combination  with  other  manufacturers  in 
the  same  line  of  business,  and  it  was  held  that  the  master  was  bound  to  ex- 
ercise good  faith  in  terminating  the  contract  under  such  provision. 

« e  Jenkins  v.  Long,  8  Md.  132;  White  Sewing  Mach.  Co.  v.  Shaddock,  79 
Ark.  220,  95  S.  W.  143.  Provisions  as  to  notice  must  as  a  rule  be  strictly 
complied  with.  Basse  v.  Allen,  43  Tex.  481 ;  City  of  Indianapolis  v.  Ely,  39 
Ind.  373.  The  provision  may,  of  course,  be  waived.  Nashua  &  L.  R.  Corp. 
v.  Paige,  135  Mass.  145. 

67  Clark,   Cont.  580-586   (where  the  requisites  of  a  custom  or  usage  are 
showii);    Parker  v.  Ihbetson,  4  C.  B.  (N.  S.)  347. 

ss  Clark,  Cont.  586 ;  Baltimore  Baseball  Club  &  Exhibition  Co.  v.  Pickett, 
78  Md.  375,  28  Atl.  279,  22  L.  R.  A.  690,  44  Am.  St.  Rep.  304 ;  Greenstine  v. 
Borchard,  50  Mich.  434,  15  N.  W.  540,  45  Am.  Rep.  51;  Seavey  v  Shurick, 
110  Ind.  494,  11  N.  E.  597. 

6»  The  Pokanoket,  156  Fed.  241,  84  C.  C.  A.  49;  Odom  v.  Bush,  125  Ga.  184, 
53  S.  E.  1013;  Frank  v.  Manhattan  Maternity  &  Dispensary  (Sup.)  107  N. 
Y.  Supp.  404 ;  Summers  v.  Phenix  Ins.  Co.,  50  Misc.  Rep.  181,  98  N.  Y.  Supp. 
226;  Coffin  v.  Landis,  46  Pa.  426;  Peacock  v.  Cumrnings,  Id.  434;  Green- 
burg  v.  Early,  4  Misc.  Rep.  99,  23  N.  Y.  Supp.  1009;  Attrill  v.  Patterson,  58 
Md.  226;  Walker  v.  Denison,  86  111.  142;  Fawcett  v.  Cash,  5  Barn.  &  Adol. 
904 ;  Hathaway  v.  Bennett,  10  N.  Y.  108,  61  Am.  Dec.  739 ;  Evans  v.  Bennett, 
7  Wis.  404.  A  contract  for  a  specified  period,  "unless  sooner  determined," 
is  not  a  hiring  at  will,  but  is  a  hiring  for  the  period  named.  Niagara  Fire 
Ins.  Co.  v.  Whittaker,  21  Wis.  329.  An  agreement  to  give  a  person  "perma- 
nent" employment  means  nothing  more  than  that  the  employment  is  to  con- 
tinue indefinitely,  and  until  one  or  the  other  of  the  parties  desires,"  for  some 
good  reason,  to  sever  the  relation.  Lord  v.  Goldberg,  81  Cal.  596,  22  Pac. 
1126,  15  Am.  St.  Rep.  S2 ;  Bentley  v.  Smith,  3  Ga.  App.  242,  59  S.  E.  720. 


584  MASTER  AND  SERVANT  (Ch.  16 

of  the  parties  .must  govern,  of  course.70  The  fact  that  the  wages 
are  payable  at  specified  periods  does  not  necessarily  show  that  the 
hiring  was  for  the  specified  period,  and  not  a  hiring  at  will,  nor, 
on  the  other  hand,  that  it  was  not  a  hiring  for  a  longer  period  than 
specified.71  As  we  have  seen,  where  a  servant  who  is  hired  for  a 
specified  period  continues  to  serve  after  expiration  of  the  term  with 
the  master's  consent,  but  without  any  new  arrangement,  a  contract 
for  another  similar  period  will  be  implied,  and  not  a  hiring  at  will.72 

T» A.  addressed  a  letter  to  B.,  offering  him  $100  per  month  for  his  services, 
and  stated:  "If  you  give  me  satisfaction  at  the  end  of  the  first  year,  I  wilJ 
increase  your  wages  accordingly."  The  offer  was  accepted  hy  B.  The  court, 
in  construing  the  contract,  held  it  a  hiring  for  one  year.  Norton  v.  Cowell, 
65  Md.  359,  4  Atl.  408,  57  Am.  Rep.  331.  In  Smith  v.  Theobald,  86  Ky.  141, 
5  S.  W.  394,  a  letter  engaging  an  hotel  manager  "at  $125  per  month"  show- 
ed upon  its  face  that  the  engagement  contemplated  his  giving  up  another  po- 
sition, removing  with  his  family  to  another  place,  several  hundred  miles 
away,  and  undertaking  there,  besides  his  duties  as  manager,  those  of  sec- 
retary and  treasurer  of  the  hotel  company.  It  was  held  that  the  letter  could 
not  be  construed  as  an  employment  by  the  month  or  at  will,  but  must  be  held 
to  import  an  engagement  by  the  year. 

TI  Frank  v.  Manhattan  Maternity  &  Dispensary  (Sup.)  107  N.  Y.  Supp.  404 ; 
The  Pokanoket,  156  Fed.  241,  84  C.  C.  A.  49 ;  Summers  v.  Phenix  Ins.  Co.,  50 
Misc.  Rep.  181,  98  N.  Y.  Supp.  226;  Babcock  &  Wilcox  Co.  v.  Moore,  62  Md. 
161;  McCullough  Iron  Co.  v.  Carpenter,  67  Md.  554,  11  Atl.  176;  Beach  v. 
Mullin,  34  N.  J.  Law,  343;  Tatterson  v.  Manufacturing  Co.,  106  Mass.  56; 
Prentiss  v.  Ledyard,  28  Wis.  131 ;  Thomas  v.  Hatch,  53  Wis.  296,  10  N.  W. 
393 ;  Haney  v.  Caldwell,  35  Ark.  156 ;  Larkin  v.  Hecksher,  51  N.  J.  Law,  133, 
16  Atl.  703,  3  L.  R.  A.  137.  Payment  of  wages  quarterly,  monthly,  or  week- 
ly is  not  inconsistent  with  a  yearly  hiring.  Norton  v.  Cowell,  65  Md.  359, 
4  Atl.  408,  57  Am.  Rep.  331;  Tatterson  v.  Manufacturing  Co.,  106  Mass.  56. 
Or  with  a  hiring  at  will.  Marquam  v.  Domestic  Engineering  Co.,  210  IlL.App. 
337.  Agreement  to  pay  at  a  yearly  rate  is  not  necessarily  a  hiring  for  a  year. 
Prentiss  v.  Ledyard,  28  Wis.  131 ;  Cuppy  v.  Stollwerck  Bros.,  216  N.  Y.  591, 
111  N.  E.  249,  reversing  158  App.  Div.  628,  143  N.  Y.  Supp.  967.  But  the 
time  for  payment  of  wages  will  determine  the  duration  of  the  employment, 
if  there  is  nothing  in  the  case  to  rebut  the  inference  arising  therefrom.  Crone- 
millar  v.  Duluth-Superior  Milling  Co.,  134  Wis.  248,  114  N.  W.  432;  Doo- 
little  v.  Pacific  Coast  Safe  &  Vault  Works,  79  Or.  498,  154  Pac.  753.  Thus, 
a  hiring  for  a  certain  sum  per  month  or  per  week  is  a  hiring  by  the  month  or 
week,  as  the  case  may  be,  if  nothing  is  said  as  to  the  length  of  time  the 
service  is  to  continue,  and  no  other  circumstances  appear.  Magarahan  v. 
Wright,  83  Ga.  773,  10  S.  E.  584 ;  Odom  v.  Bush,  125  Ga.  184,  53  S.  E.  1013. 
A  contract  that  the  servant's  "salary  from  Nov.  1st  will  be  per  month,  at 
the  rate  of  $500  a  year,"  makes  the  employment  by  the  month.  Pinckney  v. 
Talmage,  32  S.  C.  364,  10  S.  E.  10S3. 

72  Ante,  p.  577,  and  cases  there  cited.  One  who  hires  himself  on  a  contract 
for  a  year,  and  afterwards  continues  without  any  new  contract,  is  again  im- 
pliedly  hired  by  the  year,  and  neither  he  nor  his  employer  can  terminate  the 
engagement  at  his  pleasure.  McCullough  Iron  Co.  v.  Carpenter,  67  Md. 


§§  259-261)  TERMINATION  OP   THE   RELATION  585 

In  every  contract  of  hiring,  certain  provisions  for  discharge  are 
implied.  If  the  servant  proves  incompetent,  or  wrongfully  acts 
in  such  a  way  as  to  injure  the  master's  business,  or  is  otherwise 
guilty  of  breach  of  duty,  the  master  may  rightfully  discharge  him. 
This,  however,  is  a  breach  of  contract  by  the  servant  discharging 
the  master  from  further  liability  under  the  contract,  and  will  there- 
fore be  considered  in  treating  of  discharge  by  breach.73 

Discharge  of  Contract  by  Performance 

The  contract  of  hiring  is  discharged  by  full  performance  by  both 
parties.  If  a  person  is  hired  for  a  specified  time,  and  he  works  for 
that  time,  and  is  paid,  the  contract  is  at  an  end  without  the  ne- 
cessity of  any  notice.74  The  parties  may,  however,  make  a  new 
contract  for  a  further  term;  and  such  a  contract  will  be  implied 
if  the  servant  continues  to  labor,  and  the  master  acquiesces.75  The 
question  as  to  what  constitutes  sufficient  performance  is  consider- 
ed in  treating  of  breach  of  contract.  As  to  tender  and  payment, 
reference  must  be  made  to  works  on  the  general  law  of  contracts.7* 

Discharge  of  Contract  by  Breach 

A  breach,  by  either  party,  of  the  obligations  imposed  by  the  con- 
tract of  hiring,  gives  the  other  party  a  right  of  action  for  any  dam- 
ages he  may  have  sustained,  and  as  a  rule,  though  not  always, 
discharges  the  other  party  from  any  further  liability  under  the  con- 
tract.77 

Same — Breach  by  Master 

If  the  master  renounces  the  contract  either  before  the  time  for 
performance,  or  in  the  course  of  performance,  as  by  wrongfully 
discharging  the  servant,  the  servant  may  treat  the  contract  as  brok- 
en and  discharged,  and  sue  at  once  for  damages,  without  holding 
himself  ready  or  offering  to  perform  or  further  perform  the  con- 
tract on  his  part.78  The  same  is  true  where  the  master,  either  be- 

i 

554,  11  Atl.  176.  Curtis  v.  Dodd  &  Struthers,  172  Iowa,  521,  154  N.  W.  872 ; 
Morris  v.  Z.  T.  Briggs  Photographic  Supply  Co.,  192  Mo.  App.  145,  179  S.  W. 
783. 

73  Post,  p.  588. 

T4  Ewing  v.  Janson,  57  Ark.  237,  21  S.  W.  430.  And  see  Whitmore  v.  Wern- 
er (Sup.)  88  N.  Y.  Supp.  373,  and  Dodson-Braun  Mfg.  Co.  v.  Dix  (Tex.  Civ. 
App.)  76  S.  W.  451,  when  the  hiring  was  by  the  month. 

76  Ante,  p.  577. 

76  See  Clark,  Cont  629-643. 

it  Clark,  Cont.  p.  643. 

TS  Clark,  Cont.  646-648;   Hochster  v.  De  la  Tour,  2  El.  &  B7.  678;  Howard 


586  MASTER  AND  SERVANT  (Ch.  16 

fore  the  time  for  performance  or  in  the  course  of  performance,  does 
some  act  by  which  he  makes  performance 'or  further  performance 
impossible.78  If  a  master  wrongfully  discharges  his  servant,  he 
cannot,  by  subsequently  ordering  the  servant  to  return  to  work, 
put  the  servant  in  default.  After  a  wrongful  dismissal  the  con- 
tract is  discharged,  and  the  servant  need  not  return,  though  re- 
quested to  do  so.80 

It  is  a  general  principle  of  the  law  of  contracts  that  renunciation 
of  the  contract  by  one  of  the  parties  does  not  discharge  the  other 
unless  he  choose  to  treat  it  as  a  discharge ;  that  it  is  optional  with 
him  to  treat  the  contract  as  still  in  force.81  This  principle  has 
been  applied  by  some  of  the  courts  to  contracts  of  hiring,  and 
it  has  been  held  that,  where  the  master  discharges  the  servant 
without  cause,  the  servant  need  not  treat  the  contract  as  at  an 
end,  but  may  hold  himself  in  readiness  to  perform,  and  recover 
each  installment  of  wages,  as  it  falls  due,  during  the  period  for 
which  he  was  employed.82  Other  courts  refuse  to  recognize  this 
doctrine — the  doctrine  of  constructive  service,  as  it  is  called — but 
hold,  on  the  contrary,  that,  where  the  master  renounces  the  con- 
tract and  dismisses  the  servant  before  the  end  of  the  term,  the 


v.  Daly,  61  N.  Y.  362,  19  Am.  Rep.  285 ;  Burtis  v.  Thompson,  42  N.  T.  246,  1 
Am.  Rep.  516;  Ryan  v.  Dayton,  25  Conn.  188.  65  Am.  Dec.  560;  Gran  v.  Mc- 
Vicker,  8  BIBS.  13,  Fed.  Gas.  No.  5,708;  Hosmer  v.  Wilson,  7  Mich.  294,  74 
Am.  Dec.  716 ;  Jones  v.  Transportation  Co.,  51  Mich.  539,  16  N.  W.  893 ;  Nil- 
son  v.  Morse,  52  Wis.  240,  9  N.  W.  1 ;  Hartman  v.  Rogers,  69  Cal.  643,  11  Pac. 
581.  Where  a  servant  is  told  by  his  master  that  their  relations  had  better 
be  discontinued  immediately,  and  thereupon  the  servant,  no  work  being  as- 
signed to  him,  leaves,  he  is  discharged.  Bennett  v.  Morton,  46  Minn.  113, 
48  N.  W.  678.  And  see  Paine  v.  Hill,  7  Wash.  437,  35  Pac.  136.  A  request 
by  the  master  for  the  servant's  resignation,  which  is  given,  is  a  discharge 
of  the  servant  Jones  v.  Transportation  Co.,  51  Mich.  539,  16  N.  W.  893. 
But  see  WHARTON  v.  CHRISTIE,  53  N.  J.  Law,  607,  23  Atl.  258,  Cooley  Cas. 
Persons  and  Domestic  Relations,  303.  Where  the  servant  is  employed  as  a 
manager  reduction  to  the  grade  of  mere  clerk  is  a  breach  of  the  contract. 
Cooper  v.  Strong  &  Warner  Co.,  Ill  Minn.  177,  126  N.  W.  541,  27  L.  R.  A.  (N. 
S.)  1011,  20  Ann.  Cas.  663. 

"9  Clark,  Conk  649;  Plauche  v.  Colburn,  8  Bing.  14;  W.  U.  Tel.  Co.  v. 
Semmes,  73  Md.  9,  20  Atl.  127 ;  Seipel  v.  Trust  Co..  84  Pa.  47. 

80  See  Mitchell  v.  Toale,  25  S.  C.  238,  60  Am.  Rep.  502.  But  see  Best  v. 
Lizarrago,  37  Phil.  Rep.  491,  where  it  is  held  that,  where  employer  subse- 
quently offers  in  good  faith  to  take  back  discharged  employee,  it  is  the  duty, 
of  employee  to  return. 

si  Clark,  Cont.  645. 

sz  Gandell  v.  Pontigny,  4  Camp.  375,  1  Starkie,  198 :  Strauss  v.  Meertief, 
64  Ala.  299,  38  Am.  Rep.  8;  Isaacs  v.  Da  vies,  68  Ga.  169. 


§§  259-261)  TERMINATION   OF   THE   RELATION  587 

servant  cannot  go  on  and  do  the  work,  or  hold  himself  in  readiness 
to  do  it,  and  then  recover  the  contract  price  as  on  a  full  perform- 
ance, but  that  he  must  treat  the  hiring  as  at  an  end,  and  pursue 
his  remedy,  either  on  the  quantum  meruit,  or  for  damages  for 
breach  of  contract.88 

If  the  master  ill  treats  the  servant  by  assaulting  and  beating 
him,  he  breaks  an  implied  term  of  the  contract,  and  the  servant 
may  leave,  and  recover  as  upon  a  wrongful  discharge.84  And  of 
course  nonpayment  of  the  wages  as  agreed,  is  a  breach  by  the 
master. 

Same — Breach  by  Servant 

If  the  servant  willfully  renounces  and  abandons  the  service  with- 
out just  cause,  or,  by  his  inexcusable  conduct,  renders  further  per- 
formance impossible,  such  a  breach  terminates  the  contract,88  and, 
if  the  contract  is  entire,  will  discharge  'the  master  from  all  liability 
under  the  contract,  even  for  services  actually  rendered,  since  per- 
formance by  the  servant  is  a  condition  precedent  to  his  right  to 
compensation.  An  action  for  the  services  rendered  in  such  a  case 
clearly  cannot  be  brought  on  the  contract.86  Whether  there  can 
be  a  recovery  on  the  quantum  meruit  is  a  different  question.  Such 
a  recovery,  as  will  be  seen  in  a  subsequent  section,  is  allowed  by 
some  courts,  but  denied  by  others.87  Whether  or  not  a  mere  par- 
tial failure  on  the  part  of  one  of  the  parties  to  perform  the  con- 
tract discharges  the  other  altogether  from  liability  on  the  contract 
is  a  question  upon  which  the  decisions  are  conflicting.  If  there 

ss  Clark  v.  Marsiglia,  1  Denio  (N.  Y.)  317,  43  Am.  Dec.  670;  Lord  v.  Thom- 
as, 64  N.  Y.  107 ;  Hosmer  v.  Wilson,  7  Mich.  294,  74  Am.  Dec.  716 ;  Gibbons 
v.  Bente,  51  Minn.  499,  53  N.  W.  756,  22  L.  R.  A.  80 ;  Collyer  v.  Moulton,  9 
R.  I.  90,  98  Am.  Dec.  370;  Heaver  v.  Lanahan,  74  Md.  493,  22  Atl.  263; 
Owen  v.  Frink,  24  Cal.  178. 

84  Ward  v.  Ames,  9  Johns.  (N.  Y.)  138 ;  Bishop  v.  Ranney,  59  Vt.  316,  7 
Atl.  820.  But  see  Morgan  v.  Shelton,  28  La.  Ann.  822,  a  case  in  which  it 
was  held  that  a  servant  who  was  knocked  down  by  his  master  in  a  fit  of 
passion  was  not  justified  in  leaving.  An  assault  on  a  servant  or  his  child  by 
one  who  is  not  connected  with  the  master,  and  without  any  direction  or 
authority  from  the  master,  does  not  entitle  the  servant  to  leave.  Mather  v. 
Brokaw,  43  N.  J.  Law,  587.  Compare  Patterson  v.  Gage,  23  Vt.  558,  56  Am. 
Dec.  96. 

so  Leopold  v.  Salkey,  89  111.  412,  31  Am.  Rep.  93 ;  Newkirk  v.  New  York 
&  H.  R.  Co.,  38  N.  Y.  158. 

se  Hill  v.  Balkcom,  79  Ga.  444,  5  S.  E.  200 ;  Scheuer  v.  Monash,  35  Misc. 
Rep.  276,  71  N.  Y.  Supp.  818. 

87  Post,  p.  603. 


588  MASTER  AND  SERVANT  (Ch.  16 

is  an  express  and  entire  contract  to  pay  a  certain  lump  sum  for  the 
services  contracted  for,  then,  by  the  better  opinion,  the  servant 
must  perform  in  full  in  order  to  recover  anything.  If  he  performs 
in  part  only,  he  cannot  recover  on  the  quantum  meruit  for  what 
he  has  done.88 

Breach  by  one  of  the  parties  of  a  subsidiary  term  in  the  contract 
does  not  discharge  the  other,  but  merely  entitles  him  to  damages.8' 
This  is  a  well-established  principle  of  the  general  law  of  contract. 
So,  if  the  contract  is  not  entire,  but  divisible,  breach  as  to  part 
will  not  prevent  recovery  for  performance  of  the  remainder.  It 
has  been  held  that  if  services  are  to  be  paid  for  in  installments 
as  where  the  wages  are  to  be  paid  weekly  or  monthly  on  a  hiring 
for  a  year,  the  contract  will  be  regarded  as  divisible,  unless  such 
a  construction  is  expressly  excluded;  and  a  recovery  for  services 
rendered  may  be  had  by  the  servant  if  he  leaves  before  the  end  of 
the  term.90 

There  is  an  implied  contract  upon  the  part  of  a  servant  that  he 
is  competent  to  discharge  the  duties  for  which  he  is  employed; 
and,  if  he  proves  incompetent,  it  is  a  breach  of  contract,  for  which 
he  may  be  dismissed.81  A  servant  may  be  discharged  if,  by  in- 

i 

«8  Cutter  v.  Powell,  6  Term  R.  320. 

8»  In  Bettinl  v.  Gye,  1  Q.  B.  Div.  183,  the  plaintiff,  a  professional  singer, 
had  entered  into  a  contract  with  the  defendant,  director  of  an  opera,  for  his 
services  as  a  singer  for  a  considerable  time,  and  upon  a  number  of  terms, 
one  of  which  was  that  plaintiff  should  be  in  London  without  fail  at  least  six 
days  before  the  commencement  of  his  engagement,  for  the  purpose  of  re- 
hearsing. The  plaintiff  broke  this  term  by  arriving  only  two  days  before 
the  commencement  of  the  engagement,  and  the  defendant  treated  this  breach 
as  a  discharge  of  the  contract.  The  court  held,  however,  that,  in  the  ab- 
sence of  any  express  declaration  that  the  term  was  vital  to  the  contract,  it 
must  "look  to  the  whole  contract,  and  see  whether  the  particular  stipulation 
goes  to  the  root  of  the  matter,  so  that  a  failure  to  perform  it  would  render 
the  performance  of  the  rest  of  the  contract  by  the  plaintiff  a  thing  different 
in  substance  from  what  the  defendant  has  stipulated  for;  or  whether  it 
merely  partially  affects  it,  and  may  be  compensated  for  in  damages."  And 
it  was  held  that  the  term  did  not  go  to  the  root  of  the  matter,  so  as  to  con- 
stitute a  condition  precedent.  On  the  other  hand,  where  a  singer  who  had 
agreed  to  take  the  principal  part  in  an  opera  failed  to  perform  in  the  opening 
and  early  performances,  it  was  held  that  the  other  party  was  discharged. 
Poussard  v.  Spiers,  1  Q.  B.  Div.  410. 

•oChamblee  v.  Baker,  95  N.  C.  98.  The  application  of  the  rule  to  this 
particular  contract  is  contrarjr  to  the  decisions  in  many  other  states.  See 
post,  p.  603. 

»i Leatherberry  v.  Odell  (C.  C.)  7  Fed.  641;  United  Oil  &  Refining  Co.  v. 
Grey,  47  Tex.  Civ.  App.  10, 102  S.  W.  934 ;  Ivey  v.  Bessemer  City  Cotton  Mills, 


§§  259-261)  TERMINATION   OF  THE   RELATION  589 

toxication,  even  outside  of  working  hours,  and  not  on  his  master's 
premises,  he  unfits  himself  to  fully  and  properly  perform  his  du- 
ties.92 And  drunkenness  on  the  master's  premises  may  be  ground 
for  dismissal,  though  it  does  not  incapacitate  the  servant  for  the 
performance  of  his  duties.98 

A  servant  may  be  dismissed  by  the  master  before  the  expiration 
of  the  term  either  for  criminal  or  immoral  conduct,  willful  disobe- 
dience, or  habitual  neglect.94  He.  may  be  dismissed  for  larceny  or 
embezzlement,  either  from  the  master  or  a  third  person,95  and  he 
may  be  dismissed  for  cheating  or  defrauding,  or  attempting  to  cheat 
or  defraud,  his  master.96  Habitual  neglect  of  duty  is  always  suf- 
ficient ground  for  discharge.97  So  if  a  servant  handling  his  mas- 
ter's money,  as  a  cashier,  for  instance,  largely  overdraws  his  sal- 


143  N.  C.  189,  55  S.  E.  613 ;  Keedy  v.  Long,  71  Md.  385,  18  Atl.  704,  5  L.  B.  A. 
759;  Searle  v.  Ridley,  28  Law  T.  (N.  S.)  411;  Harmer  v.  Cornelius,  5  C.  B. 
(N.  S.)  236;  Waxelbaum  v.  Limberger,  78  Ga.  43,  3  S.  E.  257;  Baltimore 
Baseball  Club  &  Exhibition  Co.  v.  Pickett,  78  Md.  375,  28  Atl.  279,  22  L.  R.  A. 
690,  44  Am.  St.  Rep.  304 ;  Woodrow  v.  Hawving,  105  Ala.  240,  16  South.  720. 
But  not  because  he  is  incompetent  to  perform  duties  which  were  not  within 
the  terms  of  his  contract.  Pringle  v.  Producers'  Turpentine  Co.,  126  La.  1095, 
53  South.  359. 

»2  McCormick  v.  Demary,  10  Neb.  515,  7  N.  W.  283;  Ulrich  v.  Hower,  156 
Pa.  414,  27  Atl.  243 ;  E.  I.  Du  Pont  Co.  v.  Waddell,  178  Fed.  407,  101  C.  C.  A. 
335 ;  Smith  v.  Railroad  Co.,  60  Minn.  330,  62  N.  W.  392. 

a  3  Bass  Furnace  Co.  v.  Glasscock,  82  Ala.  452,  2  South.  315,  60  Am.  Rep. 
748;  Louisville  &  N.  R.  Co.  v.  Cox,  145  Ky.  716,  141  S.  W.  59;  Dunkell  v. 
Simons,  15  Daly,  353,  7  N.  Y.  Supp.  655 ;  Speck  v.  Phillips,  5  Mees.  &  W.  279. 

»42  Kent,  Comm.  258. 

85  Libhart  v.  Wood,  1  Watts  &  S.  (Pa.)  265,  37  Am.  Dec.  461;  Cunningham 
v.  Fonblanque,  6  Car.  &  P.  44,  49 ;  Spotswood  v.  Barrow,  5  Exch.  110 ;  Krue- 
ger  v.  Roxford  Knitting  Co.,  209  111.  App.  496  (peculation  in  expense  account). 
See,  also,  Butterick  Pub.  Co.  v.  Whitcomb,  225  111.  605,  80  N.  E.  247,  8  L.  R. 
A.  (N.  S.)  1004,  where  the  servant,  after  the  termination  of  his  employment, 
retained  a  book  issued  by  the  employer  and  delivered  it  to  a  competitor. 
Thereafter  the  employer  hired  the  employs  for  a  specified  term,  and  it  was 
held  that  the  act  of  the  employe  while  not  in  defendant's  employ  did  not 
justify  him  in  terminating  the  contract  of  employment. 

se  Singer  v.  McCormick,  4  Watts  &  S.  (Pa.)  267. 

87  Callo  v.  Brouncker,  4  Car.  &  P.  518;  Robinson  v.  Hindman,  3  Esp.  235; 
Wright  v.  Lake,  48  Wash.  469,  93  Pac.  1072 ;  Armour-Cudahy  Packing  Co.  v. 
Hart,  36  Neb.  166,  54  N.  W.  262 ;  Elliott  v.  Wanamaker,  155  Pa.  67,  25  Atl. 
826.  The  employer  is  the  sole  judge  whether  his  interests  have  been  jeopar- 
dized by  neglect.  International  Harvester  Co.  v.  Boatman,  122  111.  App.  474. 
Disregard  of  orders  as  to  time  of  coming  to  work  justifies  dismissal.  Mac- 
auley  v%  Press  Pub.  Co.,  170  App.  Div.  640,  155  N.  Y.  Supp.  1044. 


590  MASTER  AND  SERVANT  (Ch.  16 

ary,  the  master  may  discharge  him.98     Gross  moral  misconduct  is 
always  good  ground  for  dismissal.88 

Willful  disobedience  by  a  servant  of  the  master's  orders  is  a 
breach  of  his  contract,  and  ground  for  dismissal,  unless  the  dis- 
obedience is  in  a  slight  matter,  and  involves  no  serious  consequenc- 
es.1 Even  in  the  latter  case  there  are  authorities  holding  a  dis- 
missal justified,2  but  the  better  opinion  is  to  the  contrary.8  A 
dismissal  has  been  held  justified  where  a  house  servant  went  to 
see  her  sick  mother,  who  was  supposed  to  be  in  danger  of  death ;  * 
but  this  case  goes  too  far.6  A  dismissal  has  also  been  held  jus- 
tified where  a  servant  refused  to  go  on  an  errand  without  having 
had  his  dinner;  6  where  a  farm  hand  refused  to  go  to  work  without 
beer; 7  where  an  employe  smoked  in  the  shop,  in  violation  of  rules, 
and,  when  remonstrated  with,  left  the  shop  in  working  hours,  to 
finish  the  sjnoke.8  But  the  contrary  was  held  where  the  ground 
relied  upon  for  dismissal  of  a  teacher  was  the  failure  to  return 


»s  Smith  v.  Baker,  101  Mich.  155,  59  N.  W.  394. 

»»As  the  pregnancy  of  a  maid  servant,  Connors  v.  Justice,  13  Ir.  Com. 
Law,  451;  or  being  the  father  of  a  bastard  child,  Rex  v.  Inhabitants  of 
Welford,  Cald.  57 ;  or  an  attempt  to  ravish  a  maid  servant,  Atkiu  v.  Acton, 
4  Car.  &  P.  208. 

1  Lilley  v.  Elwin,  11  Q.  B.  742 ;    Spain  v.  Arnott,  2  Starkie,  256 ;    Leather- 
berry  v.  Odell  (C.  C.)  7  Fed.  641 ;   Standidge  v.  Lynde,  120  111.  App.  418 ;   Von 
Heyne  v.  Tompkins,  89  Minn.  77,  93  N.  W.  901,  5  L.  R.  A.  (N.  S.)  524 ;   Dunkell 
v.  Simons,  15  Daly,  352,  7  N.  Y.  Supp.  655 ;   Tullis  v.  Hassell,  54  N.  Y.  Super. 
Ct.  391 ;   Matthews  v.  Park  Bros.  &  Co.,  146  Pa.  384,  23  Atl.  208 ;   Id.,  159  Pa. 
579,  28  Atl.  435 ;    Macintosh  v.  Abbott,  231  Mass.  ISO,  120  N.  E.  383 ;    Fisher 
v.  Monroe  (City  Ct.)  17  N.  Y.  Supp.  837 ;   Hamlin  v.  Race,  78  111.  422.    If  the 
order  Is  a  reasonable  one,  the  servant  is  not  justified  in  refusing  to  obey 
merely  because  it  was  given  in  bad  faith  and  is  distasteful  to  the  servant. 
Development  Co.  v.  King,  161  Fed.  91,  88  C.  C.  A.  255,  24  L.  R,  A.  (N.  S.)  81L . 

2  Matthews  v.  Park  Bros.  &  Co.,  146  Pa.  384,  23  Atl.  208 ;   Id.,  159  Pa.  579, 
28  Atl.  435 ;   Forsyth  v.  McKinney,  56  Hun,  1,  8  N.  Y.  Supp.  561 ;   Turner  v. 
Mason,  14  Mees.  &  W.  112,  14  Law  J.  Exch.  311. 

s  Shaver  v.  Ingham,  58  Mich.  649,  26  N.  W.  162,  55  Am.  Rep.  712 ;  Ham- 
ilton v.  Love  (Ind.)  43  N.  E.  873;  Id.,  152  Ind.  641,  53  N.  E.  181,  54  N.  E. 
437,  71  Am.  St.  Rep.  384 ;  Mclntosh  v.  Abbott,  231  Mass.  180,  120  N.  E.  383 ; 
Callo  v.  Brouncker,  4  Car.  &  P.  518;  Park  Bros.  &  Co.  v.  Bushnell,  60  Fed. 
583,  9  C.  C.  A.  138. 

<  Turner  v.  Mason,  14  Mees.  &  W.  112,  14  Law  J.  Exch.  311. 

B  Shaver  v.  Ingham,  58  Mich.  649,  26  N.  W.  162,  55  Am.  Rep.  712. 

«  Spam  v.  Arnott,  2  Starkie,  256. 

i  Lilley  v.  Elwin,  11  Q.  B.  742. 

8  Forsyth  v.  McKinney,  56  Hun,  1,  8  N.  Y.  Supp.  561. 


§§  259-261)  TERMINATION  OP   THE   RELATION  591 

within  a  day  or  two  after  vacation  ;  9  where  a  factory  employe 
absented  himself  for  a  day.10 

By  the  better  opinion,  especially  in  the  case  of  mechanics,  clerks 
in  stores,  and  other  servants  not  menial,  the  act  of  disobedience, 
to  justify  dismissal,  must  involve  injury  to  the  master.  '  'Willful' 
disobedience,  in  the  sense  in  which  the  word  is  used  in  the  au- 
thorities, means  something  more  than  a  conscious  failure  to  obey. 
It  involves  a  wrongful  or  perverse  disposition,  such  as  to  render 
the  conduct  unreasonable,  and  inconsistent  with  proper  subordina- 
tion. We  are  not  prepared  to  hold  that,  even  in  what  is  known  as 
'menial  service/  every  act  of  disobedience  may  be  lawfully  pun- 
ished by  the  penalty  of  dismissal,  and  the  serious  consequences 
which  it  entails  upon  the  servant  put  out  of  place.  No  doubt, 
domestic  discipline  may  be  closer  than  that  in  business  employ- 
ments; but  there  must  be  a  limit  to  the  arbitrary  power  of  mas- 
ters." 1X  Unless  the  dismissal  was  clearly  justifiable  within  these 
rules,  the  question  should  be  left  to  the  jury.12 

Where  the  disposition  and  deportment  of  the  servant  are  such  as 
to  seriously  injure  the  custom  and  business  of  the  master,  or  his 
other  interests,  he  may  be  dismissed;  but  slight  discourtesies, 
hasty  words,  and  occasional  exhibitions  of  ill  temper,  are  not  suf-' 
ficient  cause  for  dismissal,  where  there  are  many  petty  causes  for 
annoyance  and  irritation  in  the  business.13 

If  a  servant,  without  the  consent  of  his  master,  engage  in  any 
employment  or  business,  for  "himself  or  another,  which  may  tend 
to  injure  his  master's  trade  or  business,  this  is  ground  for  his  dis- 
missal. "This  is  so  because  it  is  the  duty  of  the  servant,  not  only 
to  give  his  time  and  attention  to  his  master's  business,  but,  by 
all  lawful  means  at  his  command,  to  protect  and  advance  his  mas- 
ter's interests.  But,  when  the  servant  engages  in  a  business  which 


v.  Armstrong,  7  Adol.  &  E.  557.     See,  also,  Thrift  v.  Payne,  71 
111.  408. 

10  Shaver  v.  Ingham,  58  Mich.  649,  26  N.  W.  162,  55  Am.  Rep.  712.     If  a 
day's  absence  involves  serious  consequences,  it  will  justify  dismissal.     See 
Ford  v.  Danks,  16  La.  Ann.  119.    A  general  superintendent  of  a  factory  may 
be  dismissed  for  willful  absence  which  results  in  injury  to  the  business. 
Farmer  v.  First  Trust  Co.,  246  Fed.  671,  158  C.  C.  A.  627,  L.  R.  A.  1918C,  1027. 

11  Shaver  v.  Ingham,  58  Mich.  649,  26  N.  W.  162,  55  Am.  Rep.  712. 

12  Shaver  v.  Ingham,  58  Mich.  649,  26  N.  W.  162,  55  Am.  Rep.  712  ;    Ed- 
wards v.  Levy,  2  Fost.  &  F.  94. 

is  Leatherberry  v.  Odell  (C.  C.)  7  Fed.  641;    Lalande  v.  Aldrich,  41  La. 
Ann.  307,  6  South.  28. 


592  MASTER  AND   SERVANT  (Ch.  16 

brings  him  in  direct  competition  with  his  master,  the  tendency  is 
to  injure  or  endanger,  not  to  protect  and  promote,  the  interests  of 
the  latter."  l4  It  is  not  essential  that  the  servant  should  engage  in 
a  business  directly  competing  with  that  of  the  master,  but  the 
misappropriation  of  the  time  belonging  to  the  master  is  a  sufficient 
ground  for  dismissal.18 

The  master  may  condone  or  waive  a  breach  of  contract  by  the 
servant ;  and,  if  he  does  so,  he  cannot  afterwards  rely  upon  it  as  a 
discharge,  either  to  justify  a  dismissal  of  the  servant,  or  to  defeat 
an  action  for  wages.18  Retention  of  the  servant  after  knowledge 
of  misconduct  or  a  breach  of  contract  on  his  part  is  prima  facie  a 
waiver,17  but  the  master  may  ,show  circumstances  excusing  his 
delay.18  The  retention  of  a  servant  after  knowledge  of  a  specific 
breach  of  duty  will  not  waive  or  condone  subsequent  continued 
breaches  of  the  same  character.19 

If  there  is  sufficient  ground  for  dismissing  a  servant,  the  motive 
of  the  master  in  taking  advantage  of  it  is  altogether  immaterial.20 

i«Dieringer  v.  Meyer,  42  Wis.  311,  24  Am.  Rep.  415;  Glaser  v.  National 
Alumni  (Sup.)  97  X.  Y.  Supp.  984 ;  Hibbard  v.  Wood,  49  Pa.  Super.  Ct  613 ; 
Thompson  v.  Havelock,  1  Camp.  527.  Cf.  Chaddock  College  v.  Bretherick,  36 
111.  App.  621.  The  fact  that  the  servant  in  such  a  case  continues  to  give  his 
whole  time  and  attention  to  his  master's  business  is  immaterial.  Dieringer 
v.  Meyer,  supra.  Compare  Day  v.  American  Machinist  Press,  86  App.  Div. 
613,  83  N.  Y.  Supp.  263. 

IB  Atlantic  Compress  Co.  v.  Young,  118  Ga.  868,  43  S.  E,  677;  Vidalia 
Compress  &  Power  Co.  v.  Ma  thews,  1  Ga.-App.  56,  57  S.  E.  902.  In  the  lat- 
ter case  it  was,  however,  said  that,  while  a  servant  has  no  right  to  ap- 
propriate any  part  of  his  employer's  time  to  his  own  use,  yet  where  the 
work  at  which  he  is  employed  has  been  suspended,  a  temporary  absenting 
himself  where  no  injury  results  to  the  employer  will  not  justify  his  discharge. 

is  Bast  v.  Byrne,  51  Wis.  531,  8  N.  W.  494,  37  Am.  Rep.  841;  Sharp  v. 
McBride,  120  La.  143,  45  South.  41 ;  Fitzpatrick  Square  Bale  Ginning  Co.  v. 
McLaney,  153  Ala.  586,  44  South.  1023,  127  Am.  St  Rep.  71;  Reynolds  v. 
Hart,  42  Colo.  150,  94  Pac.  14;  Prentiss  v.  Ledyard,  28  Wis.  131;  Butterick 
Pub.  Co.  v.  Whitcomb,  225  111.  605,  80  N.  E.  247,  8  L.  R.  A.  (N.  S.)  1004;  Mc- 
Grath  v.  Bell,  33  N.  Y.  Super.  Ct.  195;  Leatherberry  v.  Odell  (C.  C.)  7  Fed. 
041;  Jones  v.  Field,  83  Ala.  445,  3  South.  893. 

IT  Cases  above  cited. 

18  Jonas  v.  Field,  83  Ala.  445,  3  South.  893 ;  McMurray  v.  Boyd,  58  Ark. 
504,  25  S.  W.  505. 

i»  United  Oil  &  Refining  Co.  v.  Grey,  47  Tex.  Civ.  App.  10,  102  S.  W.  934 ; 
JEROME  v.  QUEEN  CITY  CYCLE  CO.,  163  N.  Y.  351,  57  N.  E.  485,  Cooley 
Cas.  Persons  and  Domestic  Relations,  309. 

20  Von  Heyne  v.  Tompkins,  89  Minn.  77,  93  N.  W.  901,  5  L.  R.  A.  (N.  S.) 
524;  Jackson  v.  Hospital,  6  Misc.  Rep.  101,  26  X.  Y.  Supp.  27;  Corgan  v. 
Geo.  F.  Lee  Coal  Co.,  218  Pa.  386,  67  Atl.  655s  120  Am.  St.  Rep.  891,  11  Ann. 
Cas.  S38. 


§§  259-261)  TERMINATION  OP  THE   RELATION  593 

Any  adequate  cause  for  dismissal  known  to  the  master  at  the  time 
of  dismissal  will  justify  him,  whether  such  cause  was  assigned  or 
not,  and  even  though  a  different  cause  may  have  been  assigned.21 
It  has  even  been  held,  and  very  properly,  that  good  and  sufficient 
reasons  for  dismissal,  existing  at  the  time  of  dismissal,  will  justify 
him,  though  he  did  not  even  know  of  them  until  afterwards.22 

Discharge  of  Contract  by  Impossibility  of  Performance 

Impossibility  of  performance  arising  subsequent  to  the  formation 
of  the  contract  does  not  discharge  either  party  from  his  obligation, 
even  though  he  may  not  be  at  all  in  fault,? 8  except  (1)  where  the 
impossibility  arises  from  a  change  in  the  law,24  or  from  the  action 

21  Sterling  Emery  Wheel  Co.  v.  Magee,  40  111.  App.  340;    Von  Heyne  v. 
Tompkins,  89  Minn.  77,  98:  N.  W.  901,  5  L.  R.  A.  (N.  S.)  524 ;   Corgan  v.  Geo. 
F.  Lee  Coal  Co.,  218  Pa.  386,  67  Atl.  655,  120  Am.  St.  Rep.  891,  11  Ann.  Cas. 
838 ;    Ball  v.  Mining  Co.,  8  Misc.  Rep.  333,  28  N.  Y.  Supp.  537 ;    Odeneal  v. 
Henry,  70  Miss.  172,  12   South.   154;    Baillie  v.   Kell,  4  Bing.   N.   C.   63S; 
Ridgeway  v.  Market  Co.,  3  Adol.  &  E.  171.     But  see  Shaver  v.  Ingham,  58 
Mich.  649,  26  N.  W.  162,  55  Am.  Rep.  712;    Cussons  v.  Skinner,  11  Mees. 
&  Wi.  161 ;   Smith  v.  Allen,  3  Fost  &  F.  157. 

22  Odeneal  v.  Henry,  70  Miss.  172,  12  South.  154;   Von  Heyne  v.  Tompkins, 
89  Minn.  77,  93  N.  W.  901,  5  L.  R.  A.  (N.  S.)  524 ;    Willets  v.  Green,  3  Car.  & 
K.  59;    Spotswood  v.  Barrow,  5  Exch.  110.     But  see  Cussons  v.  Skinner,  11 
Mees.  &  W.  161.     In  Willets  v.  Green,  3  Car.  &  K.  59,  Alderson,  B.,  said: 
"If  an  employer  discharge  his  servant,  and  at  the  time  of  the  discharge  a 
good  cause  of  discharge  in  fact  exists,  the  employer  is  justified  in  discharg- 
ing the  servant,  although  at  the  time  of  the  discharge  the  employer  did  not 
know  of  the  existence  of  the  cause.    This  point  has  been  much  discussed  in 
the  house  of  lords  and  elsewhere,  but  what  I  have  stated  is  the  result." 

23  See  Clark,  Cont.  678  et  seq.:   Leopold  v.  Salkey,  89  111.  412,  31  Am.  Rep. 
93.     A  servant  Is  not  discharged  from  liability  to  perform  his  contract  by 
the  fact  that  he  is  arrested,  even  without  his  fault,  and  confined  in  jail.     In 
such  a  case  the  master  may  rescind.    Leopold  v.  Salkey,  supra.     Where  per- 
formance becomes  impossible  by  reason  of  contingencies  which  should  have 
been  foreseen  and  provided  against  in  the  contract,  the  promisor  is  not  dis- 
charged.    It  was  therefore  held  by  the  Supreme  Court  of  Wisconsin  that 
where  the  plaintiff  agreed  that  he  and  his  wife  should  work  for  the  defend- 
ant for  a  year,  and  four  'months  afterwards  the  wife,  being  about  to  give 
birth  to  a  child,  left,  and  the  plaintiff  was  thereupon  discharged,  the  plaintiff 
could  not  recover  for  his  wages  on  the  quantum  meruit,  as  he  should  have 
foreseen  and  provided  for  his  wife's  sickness  when  he  made  the  contract,  and 
therefore  his  nonperformance  was  not  excused.     Jennings  v.  Lyons,  39  Wis. 
553,  20  Am.  Rep.  57. 

2*  Clark,  Cont.  681.  See  Cordes  v.  Miller,  39  Mich.  581,  33  Am.  Rep.  430; 
Jones  v.  Judd,  4  N.  Y.  411.  As  where  the  object  for  which  the  services  are 
engaged  are  prohibited  by  statute.  Cordes  v.  Miller,  supra.  There  is  no 
discharge  if  the  change  in  the  law  merely  makes  performance  more  burden- 
some. Baker  v.  Johnson,  42  N.  Y.  126. 

TIFF.P.&  D.REL.(3o  ED.)— 38 


594  MASTER  AND  SERVANT  (Ch.  16 

of  a  court,  as  by  injunction  where  the  party  claiming  to  be  dis- 
charged thereby  is  not  in  fault; 28  or  (2),  in  some  states,  where  the 
object  on  which  the  services  are  to  be  performed  is  destroyed  with- 
out fault  on  the  part  of  either  party ; 2e  or  (3)  where  either  one  of 
the  parties  dies,27  or  the  servant  is  permanently  incapacitated  by 
illness  or  personal  injury,28  or  where  the  prevalence  of  a  contagious 
and  fatal  disease  in  the  vicinity  of  the  place  where  the  servant  is 
to  work  renders  it  unsafe  for  him  to  remain  there.29  As  heretofore 
stated,  impossibility  cannot  be  relied  upon  as  a  discharge  if  it  was 
created  by  the  party  himself;  but  such  impossibility  will  operate 
as  a  discharge  of  the  other  party.80  The  fact  that  the  master  be- 
comes insolvent,  and  is  obliged  to  cease  business,  does  not  dis- 
charge him  from  his  obligation  to  pay  the  servant's  wages  for 
the  full  term,  or  to  pay  damages  for  refusal  to  carry  out  the  con- 

2  s  People  v.  Insurance  Co.,  91  N.  Y.  174. 

2 «  Cook  v.  McCabe,  53  Wis.  250,  10  N.  W.  507,  40  Am.  Rep.  765;  Butter- 
field  v.  Byron,  153  Mass.  517,  27  N.  E.  667,  12  U  R.  A.  571,  25  Am.  St.  Rep. 
654;  Hindrey  v.  Williams,  9  Colo.  371,  12  Pac.  436.  But  see  Brumby  v. 
Smith,  3  Ala.  123. 

27  Clark,  Cont.  683,  collecting  cases.    The  death  of  the  master  discharges 
the  contract.    Yerrington  v.  Greene,  7  R,  I.    589,  84  Am.  Dec.  578;   Lacy  v. 
Getman,  119  N.  Y.  109,  23  N.  E.  452,  6  L.  R.  A.  728,  16  Am.  St.  Rep.  806; 
Campbell  v.  Faxon,  Horton  &  Gallagher,  73  Kan.  675,  85  Pac.  760,  5  L,  R. 
A.  (N.  S.)  1002 ;    Farrow  v.  Wilson,  I/.  R,  4  C.  P.  744.    But  it  has  been  held 
by  some  courts  that  the  death  of  one  only  of  two  joint  employers,  as  of  a 
partner,  does  not  terminate  the  hiring.     Martin  v.  Hunt,  1  Allen  (Mass.; 
419;    Fereira  v.  Sayres,  5  Watts  &  S.  (Pa.)  210,  40  Am.  Dec.  496.    The  bet- 
ter opinion,  however,  is  to  the  contrary.    Griggs  v.  Swift,  82  Ga.  392,  9  S.  E. 
1062,  5  L.  R,  A.  405, 14  Am.  St  Rep.  176 ;   Louis  v.  Elfelt,  89  Cal.  547,  26  Pac. 
1095 ;   Tasker  v.  Shepherd,  6  Hurl.  &  N.  575.    The  death  of  the  servant  dis- 
charges the  contract.     Wolfe  v.  Howes,  20  N.  Y.  197,  75  Am.  Dec.  388. 

28  The  authorities:  all  agree  that  the  incapacitating  sickness  of  the  serv- 
ant, or  incapacitating  personal  injuries,  will  operate  as  a  discharge  of  the 
contract  if  permanent,  or,  if  temporary,  excuse  nonperformance  or  delay  in 
performance  on  the  part  of  the  servant    Robinson  v.  Davison,  L.  R.  6  Exch. 
269:    Wolfe  v.  Howes,  20  N.  Y.  197,  75  Am.  Dee.  388:    Clark  v.  Gilbert,  26 
N.  Y.  279,  84  Am.  Dec.  189 ;    Spalding  v.  Rosa,  71  N.  Y.  40,  27  Am.  Rep.  7 ; 
Harrington  v.  Iron  Works  Co.,  119  Mass.  82 ;    Fuller  v.  Brown,  11  Mete. 
(Mass.)  440:    Fenton  v.  Clark,  11  Vt.  557;    Hubbard  v.  Befaen,  27  Vt.  645: 
Green  v.  Gilbert,  21  Wis.  395.     Temporary  sickness  is  no  ground  for  dis- 
missal unless  the  nature  of  the  contract  is  such  that  a  temporary  illness 
makes  it  necessary  to  employ  another  servant.     See  Cuckson  v.  Stones,  28 
Law  J.  Q.  B.  25,  5  Jur.  (N.  S.)  337,  1  El.  &  El.  248;    Eversley,  Dom.  Rel. 
929. 

2»  Lakeman  v.  Pollard,  43  Me.  463,  69  Am.  Dec.  77.     But  see  Dewey  v. 
School  Dist,  43  MSch.  480,  5  N.  W.  646,  38  Am.  Rep.  206. 
«o  Ante,  p.  585. 


§§  262-263)  REMEDIES   FOR    BREACH   OP   CONTRACT  595 

tract.81     The  appointment  of  a  receiver  has,  however,  been  held 
to  terminate  the  contract.82 


REMEDIES  FOR  BREACH  OF  CONTRACT— DAMAGES 

262.  A  breach  of  the  contract  of  hiring  by  the  servant  gives  the 

master  a  right  of  action  for  any  damages  he  may  have  sus- 
tained. 

263.  IPpon  a  breach  of  the  contract  by  the  master  by  wrongfully 

discharging  the  servant,  the  servant  has  the  following  rem- 
edies : 

(a)  He  may  bring  an  action  on  the  contract  of  hiring,  and  recover 

whatever  damages  he  may  have  sustained ;  the  measure  of 
his  damages  being  the  amount  already  earned  and  unpaid, 
and  whatever  he  would  have  earned  during  the  remainder 
of  the  term,  less  any  sums  actually  earned  in  other  employ- 
ment, or  which  he  might  have  earned  by  the  exercise  of 
reasonable  diligence  in  seeking  similar  employment. 

(b)  Or  he  may  treat  the  contract  as  rescinded,  and  recover  on 

the  quantum  meruit  for  services  actually  rendered. 

(c)  Either  of  these  actions  is  a  bar  to  the  other. 

(d)  A  few  courts  allow  him  to  treat  the  contract  as  still  in  force, 

and  recover  wages  as  they  fall  due,  upon  the  theory  of  con- 
structive service;  but  in  most  states  this  doctrine  is  re- 
pudiated. 

If  the  servant  breaks  his  contract  by  renouncing  it  before  the 
time  for  performance  has  arrrived,  or  by  abandoning  the  service 
after  a  part  performance,  or  by  otherwise  failing  to  perform  it  ac- 
cording to  its  terms,  the  remedy  of  the  master  is  by  action  of  special 
assumpsit  to  recover  damages  for  the  breach;  or  he  may  set  up 
such  damages  if  sued  by  the  servant  for  services  rendered. 

If  the  master  renounces  the  contract  before  the  time  for  perform- 
ance, and  therefore  before  any  services  are  rendered,  the  only  rem- 
edy of  the  servant,  by  the  better  opinion,  is  an  action  of  special 
assumpsit  to  recover  damages  for  the  breach.  Some  courts,  as  we 

»i  Vanuxem  v.  Bostwick  (Pa.)  7  Atl.  598. 

«2  Eddy  v.  Co-operative  Dress  Ass'n,  3  N.  T.  Civ.  Proc.  442.  And  see  In  re 
Sweetser  Pembroke  &  Co.,  142  Fed.  131,  73  C.  C.  A.  349,  when  the  contract 
expressly  provided  that  it  might  be  terminated  by  the  corporation  in  case  of 
its  dissolution  and  the  corporation  was  declared  bankrupt. 


596  MASTER  AND  SERVANT  (Ch.  16 

shall  presently  see,  permit  him  to  treat  the  contract  as  still  in  force, 
and  to  recover  the  wages,  on  the  theory  of  constructive  service, 
when  they  fall  due  under  the  contract.88 

If  the  master  breaks  the  contract  in  the  course  of  performance, 
either  by  discharging  the  servant  without  cause,  or  by  giving  the 
servant  cause  to  leave  and  refuse  further  performance,  the  servant 
has  an  election  of  remedies : 

First.  He  may  bring  special  assumpsit  against  the  master  for  his 
breach  of  the  contract ;  and  this  remedy  he  may  pursue  whether  his 
wages  are  paid  up  to  the  time  of  his  discharge  or  not.  And  he  may 
either  bring  this  action  immediately,  or  he  may  wait  until  the  period 
for  whicli  he  was  hired  has  expired.  In  such  an  action  he  will  be 
entitled  to  recover  the  wages,  if  any,  earned  up  to  the  time  of  the 
discharge,  and,  in  addition,  the  actual  damages  he  has  sustained  by 
the  master's  breach  of  the  contract.8*  In  case  he  has,  by  the  exer- 
cise of  due  diligence,  been  unable  to  secure  other  employment  dur- 
ing the  entire  term,  he  can  recover  the  entire  wages.  He  cannot 
remain  idle  during  the  term  for  which  he  was  hired,  but  must  seek 
for  other  employment.  The  measure  of  his  damages,  therefore,  is 
the  wages  he  would  have  earned  under  the  contract,  less  any 
amount  he  has  actually  earned  in  other  employment,  or  which  he 
might  have  earned  by  the  exercise  of  proper  diligence  in  seeking 
employment  in  the  same  line  of  business.88 

3  3  Post,  p.  598,  and  cases  there  cited. 

»*Keedy  v.  Long,  71  Md.  385,  18  All.  704,  5  L.  R  A.  759;  Sherman  v. 
Champlain  Transp.  Co.,  31  Vt.  162 ;  Texarkana  Lumber  Co.  v.  Lennard,  47 
Tex.  Civ.  App.  116,  104  S.  W.  506 ;  Smith  v.  Cashie  &  Chowan  R.  &  Lumber 
Co.,  142  N.  C.  26,  54  S.  E.  788,  5  L.  R.  A.  (N.  S.)  439.  Though,  according  to 
its  terms,  a  contract  of  employment  was  terminable  at  any  time,  a  refusal 
to  let  the  employ^  begin  work  was  a  breach  of  the  contract  entitling  the 
employe"  to  at  least  nominal  damages.  Cronemillar  v.  Duluth-Superior  Mill- 
ing Co.,  134  Wis.  248,  114  N.  W.  432.  He  cannot  recover  exemplary  damages. 
Consumers'  Lignite  Co.  v.  James  (Tex.  Civ.  App.)  204  S.  W.  719. 

36  Fitzpatrick  Square  Bale  Ginning  Co.  v.  McLaney,  153  Ala.  586,  44  South. 
'  1023,  127  Am.  St  Rep.  71 ;  C.  D.  Smith  &  Co.  v.  Ohler  (Ky.)  104  S.  W.  995 ; 
Lake  Erie  &  W'.  Ry.  Co.  v.  Tierney,  29  Ohio  Cir.  Ct.  R.  83  (judgment  affirmed 
75  Ohio  St  565,  SO  N.  E.  1128) ;  Kansas  Union  Life  Ins.  Co.  v.  Burman,  141 
Fed.  835,  73  C.  C.  A.  69;  Semet-Solway  Co.  v.  Wilcox,  143  Fed.  839,  74  C. 
C.  A.  635;  Peterson  v.  Drew,  2  Alaska,  560;  Elderton  v.  Emmens,  6  C.  B. 
160;  Goodman  v.  Pocock,  15  Q.  B.  576;  Keedy  v.  Long,  71  Md.  385,  18  Atl. 
704,  5  L.  R.  A.  759 ;  Sherman  v.  Champlain  Transp.  Co.,  31  Vt  162,  179 ;  How- 
ard v.  Daly,  61  N.  Y.  362,  19  Am.  Rep.  285 ;  Willoughby  v.  Thomas,  24  Grat. 
(Va.)  521 ;  Leatherberry  v.  Odell  (C.  C.)  7  Fed.  641 ;  Fuller  v.  Little,  61  III  21 ; 
Mahon  v.  Daly,  70  111.  653 ;  Dana  v.  Short,  81  111.  468;  Litchenstein  v.  Brooks, 
75  Tex.  196,  12  S.  W.  975;  Bennett  v.  Morton,  46  Minn.  113.  48  N.  W.  678; 


•§§  262-263)  REMEDIES  FOR  BREACH  OP   CONTRACT  597 

Second.  If  the  servant's  wages  are  not  paid  up  to  the  time  of  his 
discharge,  he  may  treat  the  contract  of  hiring  as  rescinded,  and 
maintain  general  assumpsit  on  the  quantum  rheruit,  to  recover  for 
the  services  he  has  actually  rendered.  He  recovers  in  such  an  ac- 
tion what  the  services  were  reasonably  worth,  and  is  not  bound  by 
the  rate  of  compensation  fixed  by  the  contract.  He  can  only  re- 
cover in  this  form  of  action  for  services  actually  rendered.36 

The  servant  must  elect  between  these  actions.  He  cannot  main- 
tain both.  If  he  elects  to  sue  upon  the  quantum  meruit,  he  treats 
the  contract  as  rescinded,  and  he  cannot  afterwards  treat  it  as 

Allen  v.  Maronne,  93  Term.  161,  23  S.  W.  113.  That  the  servant  must  use 
reasonable  diligence  In  seeking  other  employment,  and  that  the  amount 
earned,  or  which  should  have  been  earned,  in  other  employment,  will  be 
deducted  from  his  claim,  see  Howard  v.  Daly,  61  N.  Y.  362,  19  Am.  Rep. 
285;  Leatherberry  v.  Odell  (C.  C.)  7  Fed.  641;  Fuller  v.  Little,  61  111.  21; 
Champlain  v.  Stamping  Co.,  68  Mich.  238,  36  N.  W.  57;  Stevens  v.  Crane, 
37  Mo.  App.  487;  Troy  Fertilizer  Co.  v.  Logan,  96  Ala.  619,  12  South.  712. 
He  is  only  bound  to  use  reasonable  diligence  in  seeking  other  employment, 
and  is  only  required  to  seek  employment  in  the  same  or  a  similar  line  of 
business,  in  the  same  grade,  and  in  the  same  place.  Leatherberry  v.  Odell 
(C.  C.)  7  Fed.  641 ;  Strauss  v.  Meertief,  64  Ala.  299,  38  Am.  Rep.  8 ;  Fuchs 
v.  Koerner,  107  N.  Y.  529,  14  N.  E.  445;  Costigan  v.  Railroad  Co.,  2  Denio 
<N.  Y.)  609,  43  Am.  Dec.  758;  ffinchcliffe  v.  Koontz,  121  Ind.  422,  23  N.  E. 
271,  16  Am.  St.  Rep.  403;  Simon  v.  Allen,  76  Tex.  398,  13  S.  W.  296.  The 
plaintiff  is  not  required  to  allege  and  prove  that  he  was  unable  to  procure 
other  employment.  •  Beissel  v.  Vermillion  Farmers'  Elevator  Co.,  102  Minn. 
229,  113  N.  W.  575,  12  L.  R.  A.  (N.  S.)  403.  That  he  might  have  found  other 
employment  by  the  exercise  of  due  diligence  is  a  matter  of  defense.  Graff 
v.  Blumberg,  53  Misc.  Rep.  296,  103  N.  Y.  Supp.  184.  And  the  burden  of 
proving  that  other  employment  could  have  been  obtained  by  the  exercise  of 
reasonable  diligence  is  on  the  master.  American  China  Development  Co.  v. 
Boyd  (C.  C.)  148  Fed.  ^258;  Milage  v.  Woodward,  186  N.  Y.  252,  78  N.  E. 
873;  Monroe  v.  Proctor,  51  Misc.  Rep.  632,  100  N.  Y.  Supp.  1021;  San  An- 
tonio Light  Pub.  Co.  v.  Moore,  46  Tex.  Civ.  App.  259,  101  S.  Wl  867 ;  Costigan 
v.  Railroad  Co.,  2  Denio  (N.  Y.)  609,  43  Am.  Dec.  758;  Howard  v.  Daly,  61 
X.  Y.  362,  19  Am.  Rep.  285 ;  Leatherberry  v.  Odell  (C.  C.)  7  Fed.  641 ;  City 
of  .Jacksonville  v.  Allen,  25  111.  App.  54;  Brown  v.  Board  of  Education,  29 
111.  App.  572;  Odeneal  v.  Henry,  70  Miss.  172,  12  South.  154;  Allen  v. 
Whitlnrk,  99  Mich.  492,  58  N.  W.  470;  Van  Winkle  v.  Satterfield,  58  Ark. 
617,  25  S.  W.  1113,  23  L.  R.  A.  853.  Evidence  as  to  what  he  might  have 
earned  in  another  employment  is  admissible  only  In  mitigation  of  damages. 
Eisner  v.  Massillon  Iron  &  Steel  Co.,  209  111.  App.  616,  affirmed  Gorham  v. 
Same,  284  111.  594,  120  N.  E.  467.  As  to  the  effect  of  intoxication  of  the 
servant  after  dismissal,  and  when  he  should  have  been  seeking  other  em- 
ployment, see  Hinchclifte  v.  Koontz,  121  Ind.  422,  23  N.  E.  271,  16  Am.  St. 
Rep.  403. 

sc  See  Ryan  v.  Dayton,  25  Conn.  188,  65  Am.  Dec.  560;   Keedy  v.  Long,  71 
Md.  385,  18  Atl.  704,  5  L.  R.  A.  759 ;   Smith  v.  Cashie  &  Chowan  R.  &  Lumber  • 
•Co.,  142  N.  C.  26,  54  S.  E.  788,  5  L.  R.  A.  (N.  S.)  439;  Peacock  v.  Coltrane,  44 


598  MASTER  AND  SERVANT  (Ch.  16 

binding,  in  order  to  maintain  special  assumpsit  on  it  for  damages 
for  its  breach.  And  so,  conversely,  if  he  brings  special  assumpsit, 
he  treats  the  contract  as  binding,  and  he  cannot  afterwards  treat  it 
as  rescinded  for  the  purpose  of  suing  on  the  quantum  meruit.  And 
one  action  for  breach  of  the  contract  is  a  bar  to  any  further  action.37 
Third.  It  was  at  one  time  held  in  England  that,  where  a  serv- 
ant is  wrongfully  discharged,  he  may,  if  he  chooses,  treat  the  con- 
tract of  hiring  as  continuing,  notwithstanding  the  master's  breach, 
and  if  he  holds  himself  in  readiness  to  perform  the  contract  on  his 
part,  and  is  able  and  willing  to  do  so,  recover  his  wages  for  the 
whole  term,  upon  the  ground  of  constructive  service ;  either  by  one 
action  after  the  expiration  of  the  term,  or  by  a  separate  action  for 
each  installment  of  wages  as  it  falls  due  by  the  terms  of  the  con- 
tract ;  and  this  doctrine  has  been  recognized  and  applied  by  some  of 
our  courts.88  In  England,  however,  and  in  most  of  our  states,  the 
doctine  of  constructive  service  has  been  repudiated;  and  it  is  held 
that,  where  a  servant  is  wrongfully  discharged,  the  relation  ceases 
to  exist,  and  that  only  one  action  can  be  maintained  against  the 
master,  which  must  be  either  special  assumpsit  for  breach  of  the 
contract,  to  recover  for  services  rendered  and  damages  for  the 
breach,  or  general  assumpsit  for  the  services  rendered,  and  that  one 
action  is  a  bar  to  any  other.39  So  long  as  the  relation  of  master 

Tex.  Civ.  App.  530,  99  S.  Wl  107 ;  Brown  v.  Crown  Gold  Milling  Co.,  150  Cal. 
376,  89  Pac.  86;  Rogers  v.  Parham,  8  Ga.  190;  Sherman  v.  Champlain 
Transp.  Co.,  31  Vt  162;  Rye  v.  Stuhbs,  1  Hill  (S.  C.)  384;  Clark  v.  Man- 
chester, 51  N.  H.  594;  Hartman  v.  Rogers,  69  Cal.  643,  11  Pac.  581. 

37  Keedy  v.  Long,  71  Md.  385.  18  Atl.  704,  5  L.  R,  A.  759;  Litchenstein  v. 
Brooks,  75  Tex.  196,  12  S.  W.  975.  And  see  Booge  v.  Railroad  Co.,  33  Mo. 
212,  82  Am.  Dec.  160;  Wiseman  v.  Railroad  Co.,  1  Hilt  (N.  Y.)  300. 

ss  Gandell  v.  Pontigny,  4  Camp.  375,  1  Starkie,  198;  Strauss  v.  Meertief. 
64  Ala,  299,  38  Am.  Rep.  8;  Isaacs  v.  Davies,  68  Ga.  169;  Smith  v.  Cashie 
&  Chowan  R.  &  Lumber  Co.,  142  N.  C.  26,  54  S.  E.  788,  5  L.  R,  A.  (N.  S.)  439 ; 
Markham  v.  Markham,  110  X.  C.  356,  14  S.  E.  963;  Sharp  v.  McBride,  120 
La.  143,  45  South.  41. 

so  Elderton  v.  Emmens,  6  C.  B.  160;  Goodman  v.  Pocock,  15  Q.  B.  576; 
James  v.  Allen  Co.,  44  Ohio  St.  226,  6  N.  E.  246,  58  Am.  Rep.  821 ;  McMUL- 
LAN  v.  DICKINSON  CO.,  60  Minn.  156,  62  N.  W.  120,  27  L.  R.  A.  409,  51  Am. 
St.  Rep.  511,  Cooley  Cas.  Persons  and  Domestic  Relations,  314;  Derosia  t. 
Ferland,  83  Vt.  372,  76  Atl.  153,  28  L.  R.  A.  (N.  S.)  577,  138  Am.  St.  Rep.  1092 ; 
Howard  v.  Daly,  61  N.  T.  362,  19  Am.  Rep.  285 ;  Keedy  v.  Long,  71  Md.  385,  18 
Atl.  704,  5  L.  R.  A.  759;  Olmstead  v.  Bach,  78  Md.  132.  27  Atl.  501,  22  L. 
R.  A.  74,  44  Am.  St.  Rep.  273;  Richardson  v.  Machine  Works,  78  Ind.  422, 
41  Am.  Rep.  584;  JEtns.  Life  Ins.  Co.  v.  Nexsen,  84  Ind.  347,  43  Am.  Rep. 
91;  Willoughby  v.  Thomas,  24  Grat  (Va.)  521;  Jones  v.  Dnnton,  7  111.  App. 
580.  Thus,  where  a  servant  who  was  engaged  for  a  year  at  a  fixed  salary, 


§  264)  REMEDIES  FOB   BREACH  OP   CONTRACT  599 

and  servant  actually  continues,  the  servant  may  sue  the  master  for 
each  installment  of  wages  as  it  becomes  due.40 


SAME— IN   EQUITY— SPECIFIC  PERFORMANCE— IN- 
JUNCTION 

264.  Ordinarily,  a  suit  cannot  be  maintained  in  equity  to  enforce 
performance  of  a  contract  of  hiring,  either  directly,  by 
decree  for  specific  performance,  or  indirectly,  by  enjoining 
a  threatened  breach.  But  a  promise  not  to  serve  elsewhere, 
and  other  negative  promises,  may  be  enjoined,  if  necessary 
to  prevent  irreparable  injury. 

A  court  of  equity  will  not  decree  specific  performance  of  a  con- 
tract where  the  matter  of  the  contract  is  such  that  it  cannot  super- 
vise or  insure  its  execution.41  It  will  not,  therefore,  decree  spe- 
cific performance  of  a  contract  of  hiring,  for  it  could  not,  from  the 
nature  of  the  contract,  insure  execution  of  its  decree.42  Such  a 
suit  would  also  be  defeated  in  most  cases  by  the  principle  that  a 
suit  for  specific  performance  will  not  lie  where  there  is  an  ade- 
quate remedy  at  law.  Nor,  for  the  same  reasons,  will  a  court  of 
equity  ordinarily  enjoin  the  breach  of  a  contract  of  hiring,  and 
thus  negatively  or  indirectly  enforce  specific  performance  of  it.** 

payable  monthly,  was  discharged  at  the  end  of  two  months,  and  sued  for 
and  recovered  his  salary  up  to  that  time,  it  was  held  that  he  could  not  after- 
wards sue  for  the  breach  of  contract  by  the  master,  and  recover  for  wages 
after  the  discharge.  Keedy  v.  Long,  supra. 

40  Clossman  v.  Lacoste,  28  Eng.  Law  &  Eq.  140 ;   McMULLAN  v.  DICKIN- 
SON CO.,  60  Minn.  156,  62  N.  W.  120,  27  L.  R.  A.  409,  51  Am.  St.  Rep.  511,  Cool- 
ey  Cas.  Persons  and  Domestic  Relations,  314 ;   Keedy  v.  Long,  71  Md.  385,  18 
Atl.  704,  5  L.  R.  A.  759.    But  see  Olmstead  v.  Bach,  78  Md.  132,  27  Atl.  501, 
22  L.  R.  A.  74,  44  Am.   St.  Rep.  273. 

41  Clark,  Cont.  701;  Fetter.  Eq.  267. 

42  Lumley  v.  Wagner,  1  De  Gex,  M.  &  G.  616 ;  Webb  v.  England,  29  Beav.  44; 
H.  W.  Gossard  Co.  v.  Crosby,  132  Iowa,  155,  109  N.  W.  483,  6  L.  R.  A.  (N.  S.) 
1115 ;   Clark's  Case,  1  Blackf .  (Ind.)  122,  12  Am.  Dec.  213 ;   Marble  Co.  v.  Rip- 
ley,  10  Wall.  339,  19  L.  Ed.  955;  Iron  Age  Pub.  Co.  v.  W.  U.  Tel.  Co.,  83  Ala. 
498,  3  South.  449,  3  Am.  St.  Rep.  758 ;  Wm.  Rogers  Manuf  g  Co.  v.  Rogers,  58 
Conn.  356,  20  Atl.  467.  7  L.  R,  A.  779,  18  Am.  St.  Rep.  278 ;  Lindsay  v.  Glass, 
119   Ind.  301,  21  N.  11  897;   Wakeham  v.  Barker,   82  Cal.   46,   22  Pac.  1131; 
Campbell  v.  Rust,  85  Va.  653,  8  S.  E.  664.     Thus,  a  person  will  not  be  com- 
pelled to  perform  his  contract  to  sing  at  a  theater.    Lumley  v.  Wagner,  supra. 

43  Fetter,  Eq.  296;  H.  W.  Gossard  Co.  v.  Crosby,  132  Iowa,  155,  109  N.  W. 
483,  6  L.  R.  A.  (N.  S.)  1115 ;  '(containing  a  full  discussion).    Arthur  v.  Oakes, 
63  Fed.  318,  11  C.  O.  A,  209,  25  L.  R.  A.  414 ;  Wm.  Rogers  Manuf 'g  Co.  v.  Rog- 


COO  MASTER  AND  SERVANT  (Ch.  1& 

But  where  the  contract  contains  negative  promises,  and  a  breach 
thereof  would  result  in  irreparable  injury,  a  breach  of  such  nega- 
tive promises  may  be  enjoined.  Thus,  a  contract  to  serve  another 
for  a  certain  period,  and  not  to  serve  any  one  else  during  that  time, 
could  not  be  specifically  enforced  by  compelling  the  party  to  serve, 
or  enjoining  him  from  abandoning  the  employment;  but  he  could 
be  enjoined  from  serving  any  one  else.** 

RIGHTS,  DUTIES,  AND  LIABILITIES  INTER  SE 

265.  The  master  cannot  chastise  his  servant. 

266.  The  master  is  not  bound  to  give  the  servant  a  character. 

267.  The  master,  in  the  absence  of  a  special  agreement  to  the  con- 

trary, is  entitled  to  the  entire  time  and  services  of  the  serv- 
ant. 

268.  The  servant  is  bound  to  exercise  reasonable  care  not  to  injure 

his  master's  property,  or  property  of  others  in  his  master's 
care. 

269.  A  conspiracy  between  servants  to  injufe  the  master's  business 

gives  the  master  a  right  of  action  against  them. 

270.  The  master  may  justify  a  battery  in  defense  of  the  servant,  and 

vice  versa. 

271.  It  is  the  duty  of  the  master  to  pay  the  servant  the  wages 

agreed  upon,  unless  the  servant  has  forfeited  his  right  to- 
them.  By  the  better  opinion,  if  the  servant  abandons  the 
service  without  excuse,  or  is  discharged  for  good  cause, 
he  forfeits  the  right  to  wages,  even  for  the  time  he  has 
served.  Some  courts,  however,  even  in  these  cases,  allow 
a  recovery  on  the  quantum  meruit. 

ers,  58  Conn.  356,  20  Atl.  467,  7  L.  R.  A.  779,  18  Am.  St.  Rep.  278 ;  Cort  v.  Las- 
sard,  18  Or.  221,  22  Pac.  1054,  6  L.  R.  A.  653,  17  Am.  St.  Rep.  726 ;  Burney  v. 
Ryle,  91  Ga.  701,  17  S.  E.  986. 

«*  Lumley  v.  Wagner,  1  De  Gex,  M.  &  G.  616;  H.  W.  Gossard  Co.  v.  Crosby, 
132  Iowa,  155,  109  N.  W.  483,  6  L.  R.  A.  (N.  S.)  1115;  Cort  v.  Lassard,  18  Or. 
221,  22  Pac.  1054,  6  L.  R.  A.  653,  17  Am.  St.  Rep.  726;  Daly  v.  Smith,  49  How. 
Prac.  (N.  Y.)  150j  McCaull  v.  Braham  (C.  C.)  16  Fed.  37;  Duff  v.  Russell,  60- 
N.  Y.  Super.  Ct  80,  14  N.  Y.  Supp.  134,  16  N.  Y.  Supp.  958 ;  Id.,  133  N.  Y.  678, 
31  N.  E.  622 ;  Hoyt  v.  Fuller  (Super.  N.  Y.)  19  N.  Y.  Supp.  962.  In  Lumley  v. 
Wagner,  supra,  a  professional  singer  was  sued  for  specific  performance  of  a 
contract  to  sing  at  complainant's  theater  on  certain  terms,  and  during  a  cer- 
tain period  to  sing  nowhere  else.  The  court  refused  to  enforce  so  much  of 
the  contract  as  related  to  the  promise  to  sing,  but  enjoined  a  breach  of  the 


§§  265-271)       RIGHTS,  DUTIES,  AND  LIABILITIES  INTER  SB  601 

It  has  been  said  that  the  master  may  give  moderate  corporal 
correction  to  his  servant,  while  employed  in  his  service,  for  neg- 
ligence or  misconduct;  but  this  doctrine  has  long  ago  become  ob- 
%solete.  If  a  master  chastises  his  servant,  whether  the  servant  be 
an  adult  or  a  minor  (other  than  an  apprentice),  he  is  guilty  of  an 
assault  and  battery;  and  he  is  not  only  liable  to  respond  to  the 
servant  in  damages,  but  is  also  liable  to  criminal  prosecution.45 

No  master  is  legally  bound  to  give  his  servant  a  character.46  If 
the  master  does  make  to  a  third  person,  in  confidence,  a  communi- 
cation in  the  nature  of  a  character,  such  communication  is  prima 
facie  privilege;  and  no  action  can  be  maintained  by  the  servant 
against  him  on  account  of  it,  if  made  bona  fide  and  without  mal- 
ice.47 

On  a  contract  of  hiring  for  a  fixed  compensation,  the  master,  un- 
less such  a  result  is  excluded  by  the  terms  of  the  agreement,  is 
entitled  to  the  entire  time  and  services  of  the  servant  during  the 
time  for  which  he  has  engaged  to  work.48  If,  during  this  time,  he 

promise  not  to  sing  elsewhere.  In  H.  W.  Gossard  Co.  v.  Crosby,  132  Iowa,  155, 
109  N.  W.  483,  6  L.  R.  A.  (N.  S.)  1115,  the  court,  after  a  full  consideration  of 
the  authorities,  arrived  at  the  conclusion  that,  even  when  there  is  an  express 
negative  covenant,  injunction  will  not  be  granted  save  in  exceptional  cases, 
where  by  reason  of  the  peculiar  or  extraordinary  character  of  the  promised 
service  a  violation  of  the  agreement  will  cause  injury  to  the  other  party  for 
which  an  action  at  law  will  afford  no  adequate  remedy. 

*t>2  Kent,  Com.  260;  Com.  v.  Baird,  1  Ashm.  (Pa.)  267;  Cooper  v.  State,  8 
Baxt.  (Tenn.)  324,  35  Am.  Rep.  704;  Matthews  v.  Terry,  10  Conn.  455. 

48  Eversley,  Dom.  Rel.  940  (where  the  subject  is  discussed  at  length);  Car- 
rol v.  Bird,  3  Esp.  201 ;  Cleveland,  C.,  C.  &  St.  L.  R.  Co.  v.  Jenkins,  174  111.  398, 
51  N.  E.  811,  62  L.  R.  A.  922,  66  Am.  St.  Rep.  296 ;  New  York,  C.  &  St.  L.  R. 
Co.  v.  Schaffer,  65  Ohio  St.  414,  62  N.  E.  1036,  62  L.  R.  A,  931,  87  Am.  St.  Rep. 
628. 

47  Eversley,    Dom.  Rel.  940  et  seq.  (collecting    English  cases) ;  Gardner   v. 
Slade,  13  Q.  B.  801:  Toogood  v.  Spyring,  1  Cromp.,  M.  &  R.  181;  Weatherston 
v.  Hawkins,  1  Term  R.  110;  Missouri  Pac.  Ry.  Co.  v.  Behee,  2  Tex.  Civ.  App. 
107,  21  S.  W.  384.    If  the  communications  are  false,  and  made  maliciously,  an 
action  'Will  lie.    See  Rogers  v.  Clifton,  3  Bos.  &  P.  587;  Pattison  v.  Jones,  8 
Barn.  &  C.  578,  3  Man.  &  R.  101 ;  Kelly  v.  Partington,  4  Barn.  &  Adol.  700 ; 
Fountain  v.  Boodle,  3  Q.  B.  5 ;  McCauley  v.  Elrod  (Ky.)  27  S.  W.  867;  Vallery 
v.  State,  42  Neb.  123,  60  N.  W.  347. 

48  Seaburn  v.  Zachmann,  99  App.  Div.  218,  90  N.  T.  Supp.  1005;  Stebbins  v. 
Waterhouse,.  58  Conn.  370,  20  Atl.  480.      See  the  federal  statutes  relating  to 
hours  of  service  of  railway  trainmen.    Hours  of  Service  Act  March  4,  1907  (U. 
S.  Comp.  St  §§  8677-8680),  and  Adamson  Law  Sept.  3,  5,  1916  (U.  S.  Comp.  St. 
§§  8680a-8680d),  fixing  an  Eight-hour  Day  for  computing  compensation  for 
trainmen.    The  expression  "on  duty,"  as  used  in  the  Hours  of  Service  Act  of 
March  4,  1907,  means  actually  engaged  in  the  work  or  charged  with  responsi- 


602  MASTER  AND  SERVANT  (Ch.  16 

works  for  others,  the  compensation  earned  for  such  work  belongs  to 
the  master.49  This  doctrine  does  not  prevent  the  servant  working 
for  others  outside  of  the  hours  for  which  the  servant  is  engaged.80 
The  master,  however,  has  no  exclusive  right  to  the  inventions  of 
the  servant,51  unless  there  is  an  agreement  to  that  effect,62  or  the 
servant  is  employed  solely  to  exercise  his  inventive  ability  for  the 
master's  benefit.58 

The  servant  is  always  liable  to  his  master  for  a  violation  of  his 
duty  whereby  the  master  is  injured.  He  is  bound  to  perform  the 
business  of  the  master  with  due  diligence  and  fidelity,  and  with  the 
degree  of  skill  usually  possessed  by  persons  of  ordinary  capacity 
engaged  in  the  same  business  or  employment;  and  if  he  fails  in 
this  duty,  to  the  master's  injury,  he  is  liable  to  the  master  in  dam- 
ages.54 A  servant  is  as  much  bound  to  exercise  reasonable  care 
not  to  injure  the  property  of  his  master  as  he  is  to  exercise  such 
care  in  relation  to  the  property  of  other  persons,  and  if  he  fails  in 
this  duty  he  is  liable  to  the  master  for  the  resulting  damages.65 
In  like  manner,  he  is  liable  to  the  master  for  injury,  caused  by  his 
negligence,  to  property  of  third  persons,  intrusted  to  the  master, 
and  for  which  the  master  is  liable  to  such  third  persons;  and  it  is 
not  necessary  that  the  claim  of  the  latter  against  the  master  shall 

bility  for  such  as  may  arise.  United  States  v.  Denver  &  R.  G.  R.  Co.  (D.  C.) 
197  Fed.  629.  Brief  layoffs  for  meals  do  not  break  the  continuity  of  service 
within  the  act.  United  States  v.  Chicago,  M.  &  P.  S.  Ry.  Co.  (D.  C.)  197  Fed. 
624. 

49  See  Leach  v.  Railroad  Co.,  86  Mo.  27,  56  Am.  Rep.  408;  Sumner  v.  ^evin, 
4  Cal.  App.  347,  87  Pac.  1105 ;  Stebbins  v.  Waterhouse,  58  Conn.  370,  20  Atl. 
480 ;  Hoyt  v.  Fuller  (Super.  N.  Y.)  19  N.  Y.  Supp.  962. 

so  Wallace  v.  De  Young,  98  111.  638,  38  Am.  Rep.  108 ;  Stone  v.  Bancroft,  139 
Cal.  78,  70  Pac.  1017,  72  Pac.  717.  But  see  Hughes  v.  Toledo,  etc.,  Scale  Co., 
112  Mo.  App.  91,  86  S.  W.  895. 

si  Joliet  Mfg.  Co.  v.  Dice,  105  111.  649,  affirming  Dice  v.  Joliet  Mfg.  Co.,  11 
111.  App.  109 ;  Ft.  Wayne,  C.  &  L.  R,  Co.  v.  Haberkorn,  15  Ind.  App.  479,  44  N. 
E.  322. 

82  Portland  Iron  Works  v.  Willett,  49  Or.  245,  89  Pac,  421,  90  Pac.  1000; 
Hopedale  Mach.  Co.  v.  Entwistle,  133  Mass.  443. 

us  Connelly  Mfg.  Co.  v.  Wattles,  49  N.  J.  Eq.  92,  23  Atl.  123;  Detroit  Lubri- 
cator Co.  v.  Lavigne  Mfg.  Co.,  151  Mich.  650,  115  N.  W.  988. 

5*  Smith  v.  Foran,  43  Conn.  244,  21  Am.  Rep.  647;  Brewer  v.  Wright,  25  Neb. 
305,  41  N.  W.  159;  Child  v.  Detroit  Mfg.  Co.,  72  Mich.  623,  40  N.  W.  916;  Al- 
paugh  v.  Wood,  53  N.  J.  Law,  638,  23  Atl.  261 ;  Mobile  &  M.  Ry.  Co.  v.  Clanton, 
59  Ala.  392,  31  Am.  Rep.  15;  Woodrow  v.  Hawving,  105  Ala.  240,  16  South.  720 ; 
Prescott  v.  White,  18  111.  App.  322. 

55  Mobile  &  M.  Ry.  Co.  v.  Clanton,  59  Ala.  392,  31  Am.  Rep.  15;  Smith  v. 
Foran,  43  Conn.  244,  21  Am.  Rep.  647;  Walker  v.  Association,  18  Q.  B.  277. 


§§  265-271)       RIGHTS,  DUTIES,  AND  LIABILITIES   INTER   SE  603 

have  been  judicially  enforced  or  determined  before  suit  is  brought 
against  the  servant.58  If  a  servant  uses  in  his  own  business  prop- 
erty of  his  master,  delivered  to  him  for  use  in  his  master's  business, 
he  is  liable  to  the  master  for  the  value  of  the  use.57  So,  too,  the 
servant  impliedly  contracts  not  to  divulge  the  secret  processes  or 
other  trade  secrets  of  the  master.58  It  has  also  been  held  to  be  a 
violation  of  his  duty  if  in  his  capacity  as  an  employe  he  learns  that 
the  master  wishes  to  acquire  certain  property,  and  secretly  pur- 
chases the  same  in  order  to  sell  it  to  the  master  at  an  advanced 
price.59 

A  conspiracy  between  servants  to  injure  the  master  in  his  busi- 
ness gives  the  master  a  right  of.  action  against  them  for  any  dam- 
ages sustained  by  him.  Thus,  where  18  journeymen  tailors,  work- 
ing for  a  merchant  tailor,  by  conspiracy  between  them-,  stopped 
work  simultaneously,  and  returned  their  work  to  him  unfinished, 
and  worthless  in  that  condition,  and  he  was  unable  to  get  others  to 
finish  the  work,  it  was  held  that  he  might  maintain  an  action 
against  them  for  damages.60 

Master  and  servant  have  a  right  to  defend  each  other,  and  either 
can  justify  a  battery  in  defense  of  the  other.61 

The  Right  to  Wages 

Of  course,  a  servant  is  entitled  to  recover  his  wages  if  he  per- 
forms the  contract  of  hiring.  If  he  does  not  perform  in  full,  he 
is  nevertheless  entitled  to  recover  for  the  services  rendered,  if  he 
has  a  legal  excuse  for  nonperformance  in  full.62  Thus,  if  either 

56  Smith  v.  Foran,  43  Conn.  244,  21  Am.  Rep.  647. 

67  Stebbins  v.  Waterhouse,  58  Conn.  370,  20  Atl.  480. 

SB  Taylor  Iron  &  Steel  Co.  v.  Nichols  (N.  J.  Ch.)  65  Atl.  695;  O.  &  W.  Thum 
Co.  v.  Tloczynski,  114  Mich.  149,  72  N.  W.  140,  38  L.  R.  A.  200,  68  Am.  St.  Rep. 
469.  Injunction  will  lie  to  prevent  an  employ  6  from  disclosing  secret  process- 
es ;  and  formulas.  American  Stay  Co.  v.  Delaney,  211  Mass.  229,  97  N.  E.  911, 
Ann.  Cas.  1913B,  509 ;  Macbeth-Evans  Glass  Co.  v.  Schnelbach,  239  Pa.  76,  86 
Atl.  688.  Injunction  will  lie  to  prevent  an  employs  from  disclosing  to  a  new 
employer  a  list  of  customers  furnished  him  when  he  entered  the  service  of 
complainant.  Empire  Steam  Laundry  Co.  v.  Lozier,  165  Cal.  95,  130  Pac.  1180, 
44  L.  R.  A.  (N.  S.)  1159. 

so  American  Circular  Loom  Co.  v.  Wilson,  198  Mass.  182,  84  N.  E.  133,  126 
Am.  St.  Rep.  409. 

eo  Mapstrick  v.  Ramge,  9  Neb.  390,  2  N.  W.  739,  31  Am.  Rep.  415. 

6i  2  Kent,  Comm.  261;  1  Bl.  Comm.  429. 

ez  Clark,  Cont.  683,  684;  Robinson  v.  Davison,  L.  R.  6  Excti.  269;  Magida  v. 
Wiesen,  "114  App.  Div.  866,  100  N.  Y.  Supp.  268.  He  may  recover  if  prevented 
by  the  master  from  performing  in  full.  Blood  v.  Enos,  12  Vt  625,  36  Am.  Dec. 
363. 


G04  MASTER  AND   SERVANT  (Ch.  16 

party  dies  before  the  end  of  the  term,  the  wages  may  be  recovered 
by  or  against  his  personal  representative,  as  the  case  may  be,  for 
the  services  actually  rendered.68  So  incapacitating  illness  excuses 
further  performance,  and  past  wages  may  be  recovered.64  The 
question  of  what  operates  as  an  excuse  is  explained  in  another  sec- 
tion." 

In  England,  and  in  most  of  our  states,  contracts  of  hiring  for  a 
specified  term  are  regarded  as  entire,  and  the  servant  is  not  allowed 
to  recover  for  his  services  unless  he  alleges  and  proves  full  per- 
formance on  his  part;  such  performance  being  held  a  condition 
precedent  to  any  liability  on  the  part  of  the  master.  And  it  is 
therefore  held  that  if  a  servant  willfully  abandons  the  service,  with- 
out cause,  before  the  end  of  the  term,  or  if  he  is  guilty  of  such  a 
breach  of  the  contract  as  justifies  the  master  in  discharging  him, 
he  cannot  recover  on  an  entire  contract,  even  for  the  services  ac- 
tually rendered  prior  to  the  abandonment  or  discharge.86  If  tlf« 
contract  is  divisible,  the  rule  is  different.  Other  courts  regard  this 
doctrine  as  harsh,  and,  upon  equitable  principles,  allow  the  serv- 
ant, even  in  case  of  willful  abandonment,  or  dismissal  for  cause, 
to  recover  on  the  quantum  meruit  for  the  services  rendered.  He 
has  not  performed  on  his  part,  and  therefore  he  cannot  recover 
on  the  contract;  but  the  action  is  based  on  a  contract  implied,  or 
rather  created  by  law,  because  of  the  benefit  received  by  the  mas- 

«»  Yerrington  v.  Greene,  7  R.  I.  589,  84  Am.  Dec.  578. 

«*  Fen  ton  v.  Clark,  11  Vt.  557:  ante,  p.  594,  and  cases  there  cited. 

«  s Ante,  p.  693. 

««  Lilley  v.  Elwin,  11  Q.  B.  742;  Cutter  v.  Powell,  6  Term  R.  320;  Ridgway 
v.  Market  Co.,  3  Adol.  &  E.  171 ;  Stark  v.  Parker,  2  Pick.  (Mass.)  267,  13  Am. 
Dec.  425 ;  Olmstead  v.  Beale,  19  Pick.  (Mass.)  528;  Miller  v.  Goddard,  34  Me. 
102,  56  Am.  Dec.  638 ;  Erving  v.  Ingram,  24  N.  J.  Law,  520;  Mather  v.  Brokaw, 
43  N.  J.  Law,  587 ;  Curlee  v.  Reiger,  45  111.  App.  544 ;  Badgley  v.  Heald,  4  Oil- 
man ail.)  64;  Hansell  v.  Erickson,  28  111.  257;  Diefenback  v.  Stark,  56  Wis. 
462,  14  N.  W.  621,  43  Am.  Rep.  719 ;  NELICHKA  v.  ESTERLY,  29  Minn.  146,, 
12  N.  W.  457,  Cooley  Cas.  Persons  and  Domestic  Relations,  318 ;  Kohn  v.  Fan- 
del,  29  Minn.  470,  13  N.  W.  904;  Helm  v.  Wilson,  4  Mo.  41,  28  Am.  Dec.  33& 
(but  see,  contra,  Lee  v.  Ashbrook,  14  Mo.  378,  55  Am.  Dec.  110)  ;  Timberlake 
v.  Thayer,  71  Miss.  279,  14  South.  446,  24  L.  R.  A.  231 ;  Hutchinson  v.  Wet- 
more,  2  Cal.  310,  56  Am.  Dec.  337;  Keane  v.  Liebler  (Sup.)  107  N.  Y.  Supp. 
102;  McMillan  v.  Vanderlip,  12  Johns.  (N.  Y.)  165,  7  Am.  Dec.  299;  Jennings 
v.  Camp,  13  Johns.  (N.  Y.)  94,  7  Am.  Dec.  367;  Reab  v.  Moor,  19  Johns.  (N. 
Y.)  337;  Lantry  v.  Parks,  8  Cow.  (N.  Y.)  63.  If  the  servant  is  not  guilty  of 
any  willful  deviation  from  the  terms  of  the  contract,  but  fails  to  fulfill  them, 
and  has  performed  work  beneficial  to  the  master,  he  may  recover  on  the 
quantum  meruit  Blood  v.  Enos,  12  Vt.  625,  36  Am.  Dec.  363. 


§§  265-271)       RIGHTS,  DUTIES,  AND   LIABILITIES   INTER   SB  605 

ter  from  the  services  rendered.67  In  such  an  action  the  recovery 
is  the  reasonable  value  of  the  services,  and  not  the  contract  price, 
but  it  cannot  exceed  the  contract  rate  of  compensation;  and  the 
master  may,  by  counterclaim,  set  up  any  damages  sustained  by  him 
by  reason  of  the  servant's  breach.68 

Where  there  is  no  agreement  as  to  the  amount  of  compensation 
to  be  paid  for  services,  the  law  implies  an  obligation  to  pay  what 
they  are  reasonably  worth.69  If, the  rate  of  compensation,  or  a 
mode  of  determining  the  compensation,  is  fixed  by  the  agreement, 
it  must  govern.70  It  is  competent  for  the  parties  to  leave  it  to  the 
master — or,  indeed,  to  the  servant,  either — to  fix  the  compensation, 
after  the  services  are  rendered,  at  such  a  sum  as  he  may  think  right 
and  proper;  and  his  determination  as  to  the  amount  will  be  con- 
trolling, in  the  absence  of  fraud  or  bad  faith.71 

While  a  servant  cannot  as  a  rule  recover  additional  compensa- 
tion for  extra  work  performed  within  the  scope  of  his  employment, 
in  the  absence  of  an  express  agreement,72  yet  for  work  outside  of 
the  scope  of  his  regular  employment,  performed  at  the  request  of 
the  master,  he  is  entitled  to  additional  compensation,  though  there 
was  no  express  agreement  therefor.78 

67  Britton  v.  Turner,  6  N.  H.  481,  26  Am.  Dec.  713;  Lee  v.  Ashbrook,  14  Mo. 
378,  55  Am.  Dec.  110 ;  Lowe  v.  Sinklear,  27  Mo.  310 ;  Coe  v.  Smith,  4  Ind.  79, 
58  Am.  Dec.  618. 

88  Taylor  v.  Paterson,  9  La.  Ann.  251;  Newman  v.  Reagan,  63  Ga.  755;  Coe 
v.  Smith,  4  Ind.  79,  58  Am.  Dec.  618. 

•»  Millar  v.  Cuddy,  43  Mich.  273,  5  N.  W.  316,  38  Am.  Rep.  181 ;  Elwell  v. 
Roper,  72  N.  H.  585,  58  Atl.  507;  Hendrickson  v.  Woods,  77  App.  Div.  644,  78 
N.  T.  Supp.  949 ;  Ryan  v.  Dayton,  25  Conn.  188,  65  Am.  Dec  560 ;  Tucker  v. 
Preston,  60  Vt.  473,  11  Atl.  726 ;  Farrell  v.  Dooley,  17  111.  App.  66.  Where  the 
master  agreed  to  pay  "the  same  wages  as  shall  be  paid  to  other  employes  fill- 
ing similar  positions,"  and  it  does  not  appear  that  there  were  other  men  fill- 
ing similar  positions,  the  servant  may  recover  what  the  services  were  reason- 
ably worth.  Kent  Furniture  Mfg.  Co.  v.  Ransom,  46  Mich.  416,  9  N.  W.  454. 
See,  also,  Crusoe  v.  Clark,  127  Cal.  341,  59  Pac.  700. 

70  Smith  v.  The  Joshua  Levines  (D.  C.)  4  Fed.  846.    And  see  Laubach  v.  Ce- 
dar Rapids  Supply  Co.,  122  Iowa,  643,  98  N.  W.  511. 

71  Butler  v.  Mill  Co.,  28  Minn.  205,  9  N.  W.  697,  41  Am.  Rep.  277;  Millar  v. 
Cuddy,  43  Mich.  273,  5  N.  W.  316,  38  Am.  Rep.  181.    To  the  same  effect,  see 
Alford  v.  Cook  (Sup.)  107  N.  Y.  Supp.  710.    The  mere  fact  that  the  master,  un- 
der such  an  agreement,  fixes  the  compensation  at  an  amount  considerably  less 
than   the  court,  upon  the  evidence,   finds  that  the  services   were   reasonably 
worth,  is  not  of  itself  sufficient  to  justify  an  inference  of  fraud  or  bad  faith. 
Butler  v.  Mill  Co.,  supra. 

72  Cany  v.  Halleck,  9  Cal.  198;  Schurr  v.  Savigny,  85  Mich.  144,  48  N.  W. 
547. 

73  Brown  v.  Crown  Gold  Milling  Co.,  150  Cal.  376,  89  Pac.  86;  Dull  v.  Bram- 


606  MASTER  AND  SERVANT  (Ch.  16 


272  It  is  the  duty  of  the  master — which  he  cannot  delegate,  and 
for  a  breach  of  which  he  is  liable  to  the  servant,  in  the 
case  of  personal  injuries — to  use  ordinary  care — 

(a)  To  provide  reasonably  safe  and  suitable  tools  and  appliances. 

(b)  To  provide  reasonably  safe  premises. 

(c)  To  provide  competent  fellow  servants,  and  a  sufficient  num- 

ber of  them. 

(d)  To  promulgate  rules,  where  the  nature  of  the  work  requires 

them. 

(e)  To  instruct  and  warn  young  and  inexperienced  servants. 

273.  The  master  is  liable  only  for  failure  to  exercise  reasonable 

care  in  the  performance  of  these  duties.  He  is  not  an  in- 
surer. 

274.  On  entering  the  service  a  servant  impliedly  contracts  that  he 

possesses  the  ordinary  skill  and  experience  of  those  en- 
gaged in  the  occupation  he  undertakes,  that  he  will  ex- 
ercise ordinary  care  to  protect  himself  while  engaged  in 
that  occupation,  and  that  he  will  assume  the  risks  of  the 
employment,  including  the  risks  arising  from  the  negli- 
gence of  fellow  servants.  But  to  this  rule  there  are  a 
number  of  exceptions. 

275.  In  many  states  the  general  rules  as  to  the  liability  of  the  mas- 

ter for  injuries  to  his  servant  have  been  modified  by  stat- 
utes, which  in  most  instances  enlarge  the  liability  of  the 
master. 

A  master  is  under  an  obligation,  implied  in  the  contract  of  hir- 
ing, to  use  reasonable  and  ordinary  care  to  provide  suitable  means 
and  appliances  to  enable  the  servant  to  do  his  work  as  safely  as 
the  hazards  incident  to  the  work  will  permit.74  If  he  fails  to 

hall,  49  111.  364;  Cincinnati,  I.  &  O.  R.  Co.  r.  Clnrkson,  7  Ind.  595.  See,  also, 
Alford  v.  Cook  (Sup.)  107  N.  Y.  Supp.  710,  holding  that,  under  a  contract  to 
pay  a  salesman  an  additional  sura  if  his  sales  were  satisfactory,  it  lay  with 
the  employer  alone  to  determine  whether  the  sales  were  satisfactory. 

i  *  Bailey,  Mast.  Liab.  2,  13;  Kotera  v.  American  Smelting  &  Refining  Co., 
80  Neb.  648,  114  N.  W.  945 ;  Carter  v.  McDermott,  29  App.  D.  C.  145,  10  L.  R 
A.  (N.  S.)  1103,  10  Ann.  Cas.  601 ;  Newton  v.  New  York  Cent  &  H.  R.  R.  Co.. 


§§  272-275)      MASTER'S  LIABILITY  FOR  INJURIES  TO  SERVANT        607 

perform  this  duty,  and  by  reason  of  his  neglect  the  servant  is  in- 
jured, he  is  liable  in  damages.  As  we  shall  see,  ordinary  care, 
and  such  care  only,  is  required.  A  master  does  not  insure  the 
absolute  safety  of  the  tools  and  appliances  furnished.  He  is  bound 
to  use  ordinary  care  to  provide  appliances  that  are  reasonably  safe 
and  suitable.78  He  is  not  bound  to  supply  the  best,  safest,  or 
newest.76  The  test  is  general  use  in  the  business.77  He  must 

96  App.  Div.  81,  89  N.  Y.  Siipp.  23,  affirmed  183  N.  T.  556,  76  N.  E.  1102;  Gibson 
v.  Railroad  Co.,  46  Mo.  163,  2  Am.  Rep.  497;  Hough  v.  Railway  Co.,  100  TJ.  S. 
213,  25  L.  Ed.  612;  Columbian  Enameling  &  Stamping  Co.  v.  Burke,  37  Ind. 
App.  518,  77  N.  E.  409,  117  Am.  St.  Rep.  337;  Pagan  v.  Southern  Ry.  Co.,  78  S. 
C.  413,  59  S.  E.  32,  13  Ann.  Gas.  1105 ;  Gomez  v.  Tracey,  115  La.  824,  40  South. 
234 ;  Flike  v.  Railway  Co.,  53  N.  Y.  549,  13  Am.  Rep.  545 ;  Cone  v.  Railway  Co., 
81  N.  Y.  207,  37  Am.  Rep.  491;  Chicago  &  N.  W.  Ry.  Co.  v.  Jackson,  55  111.  492, 
8  Am.  Rep.  661;  Toledo,  W.  &  W.  Ry.  Co.  v.  Ingraham,  77  111.  309;  Ford  v. 
Railway  Co.,  110  Mass.  240,  14  Am.  Rep.  598 ;  Stephenson  v.  Duncan,  73  Wis. 
406,  41  N.  W.  337,  9  Am.  St.  Rep.  806. 

75  Washington  &  G.  R.  Co.  v.  McDade,  135  U.  S.  554,  10  Sup.  Ct.  1044,  34  L. 
Ed.  235;  Monsen  v.  Crane,  99  Minn.  186,  108  N.  W.  933;  McDonald  v.  Cali- 
fornia Timber  Co.,  7  Cal.  App.  375,  94  Pac.  376 ;  Conroy  v.  Morrill  &  Whiton 
Const.  Co.,  194  Mass.  476,  80  N.  E.  489;  Dunn  v.  Nicholson,  117  Mo.  App.  374, 
93  S.  W.  869;  Baurnan  v.  Cowdin,  75  N.  J.  Law,  193,  66  Atl.  914;  Armour  & 
Qo.  v.  Russell,  144  Fed.  614,  75  C.  C.  A.  416,  6  L.  R.  A.  (N.  S.)  602;  Chicago, 
B.  &  Q.  R.  Co.  v.  Avery,  109  111.  314 ;  Pennsylvania  Co.  v.  Lynch,  90  111.  333 ; 
Richardson  v.  Cooper,  88  111.  270 ;  Marsh  v.  Checkering,  101  N.  Y.  400,  5  N.  E. 
56;  Lyttle  v.  Railway  Co.,  84  Mich.  289,  47  N.  W.  571.  In  Bauman  v.  Cowdin, 
75  IN.  JA  Law,  193,  66  Atl.  914,  it  was  said  that  a  master  is  not  liable  when 
an  accident  happens  to  a  servant  on  the  first  occasion  when  the  apparatus  pur- 
chased of  a  reliable  manufacturer  is  used,  if  the  method  of  use  is  the  same 
method  as  would  be  required  to  make  a  proper  test.  A  master  is  not  liable  if 
the  machinery  was  in  a  reasonably  safe  condition  or  if  there  was  some  defec- 
tive part,  but  such  defective  part  did  not  cause  the  injury.  Atoka  Coal  &  Min- 
ing Co.  v.  Miller,  7  Ind.  T.  104,  104  S.  W.  555.  The  employer  must  use  reason- 
able care  to  provide  safe  appliances  and  to  discover  defects  therein.  Rio  Grande 
Southern  R.  Co.  v.  Campbell  (Colo.)  176  Pac.  275.  The  duty  of  the  master  to 
provide  safe  machinery  is  not  affected  by  knowledge  of  the  servant  of  the  de- 
fect under  the  Employers'  Liability  Act  of  1911  (St.  1911,  p.  796).  La  Fleur 
v.  M.  A.  Burns  Lumber  Co.,  38  Cal.  App.  279,  176  Pac.  58.  In  view  of  the  fed- 
eral Safety  Appliance  Act  (U.  S.  Comp.  St.  §§  8605-8612)  and  the  federal  Em- 
ployers' Liability  Act  (U.  S.  Comp.  St.  §§  8657-8665),  the  duty  of  a  railroad 
company  to  furnish  safe  appliances  is  absolute.  Thayer  v.  Denver  &  R.  G.  R. 
Co.,  21  N.  M.  330,  154  Pac.  691;  Noel  v.  Quincy,  O.  &  K.  C.  R.  Co.  (Mo.  App.) 
182  S.  W.  787.  See  Safety  Appliance  Act  March  2,  1893  (U.  S.  Comp.  St.  §§ 
8605-8612),  as  to  railway  appliances. 

re  Bailey,  Mast.  Liab.  23  et  seq.;  Vinson  v.  Willingham  Cotton  Mills,  2  Ga. 
App.  53,  58  S.  E.  413;  Smith  v.  Chicago  Junction  Ry.  Co.,  127  111.  App.  89; 
Blust  v.  Pacific  States  Telephone  Co.,  48  Or.  34,  84  Pac,  847 ;  Monsen  v.  Crane, 
99  Minn.  186,  108  N.  W.  933 ;  Belk  v.  Lee  Roy  Myers  Co.,  17  Ga.  App.  684,  87 

77  See  note  77  on  following  page, 


608  MASTER  AND   SERVANT  (Ch.  16 

keep  his  appliances  in  repair,  and  provide  against  liability  to  decay 
from  age,  or  wear  out  from  use ; T8  but  this  does  not  apply  to  ap- 
pliances which  the  servant  is  employed  to  repair.79  He  is  not  liable 
for  hidden  defects,  which  were  unknown,  and  which  could  not  have 
been  discovered  in  the  exercise  of  ordinary  care.80 

While  the  proper  fulfillment  of  his  obligations  imposes  on  the 
master  the  duty  of  inspection,81  he  is  not  bound  to  inspect  simple 

S.  E.  1089;  Guyer  v.  Sterling  Laundry  Co.,  171  Cal.  761,  154  Pac.  1057;  Lehigh 
&  Wilkes-Barre  Coal  Co.  v.  Hayes,  128  Pa.  294,  18  AtL  387,  5  L.  R.  A.  441,  15 
Am.  St.  Rep.  680.  The  master  Is  not  bound  to  furnish  any  particular  make 
of  machinery.  Imhoof  v.  Northwestern  Lumber  Co.,  43  Wash.  387,  86  Pac.  650. 

"Cases  cited  In  preceding  note;  SPARKS  v.  RIVER  &  HARBOR  IM- 
PROVEMENT CO.,  74  N.  J.  Law,  818,  67  Atl.  600,  Cooley  Cas.  Persons  and 
Domestic  Relations,  320 ;  Filbert  v.  New  York,  N.  H.  &  H.  R.  Co.,  95  App.  Dlv. 
199,  88  N.  Y.  Supp.  438,  affirmed  184  N.  Y.  522,  76  N.  E.  1095 ;  Central  Grana- 
ries Co.  v.  Ault,  75  Neb.  249,  106  N.  W.  418,  107  N.  W.  1015 ;  Northern  Cent. 
Ry.  Co.  v.  Husson,  101  Pa.  1,  47  Am.  Rep.  690;  The  Maharajah  (D.  C.)  40 
Fed.  784;  Vinton  v.  Schwab,  32  Vt.  614.  But  this  test  is  not  conclusive. 
Camenzlnd  v.  Freeland  Furniture  Co.,  89  Or.  158,  174  Pac.  139. 

78  Richardson  v.  Cooper,  88  111.  270;  International  Mercantile  Marine  Co.  v. 
Fleming,  151  Fed.  203,  80  C.  C.  A.  479 ;  Armour  &  Co.  v.  Russell,  144  Fed.  614, 
75  C.  C.  A.  416,  6  L,  R.  A.  (N.  S.)  602 ;  Gomez  v.  Tracey,  115  La.  824,  40  South. 
234 ;  Columbian  Enameling  &  Stamping  Co.  v.  Burke,  37  Ind.  App.  518,  77  N. 
E.  409,  117  Am.  St  Rep.  337 ;  Chicago,  K.  &  W.  R.  Co.  v.  Blevins,  46  Kan.  370, 
26  Pac.  687 ;  Carter  v.  McDermott,  29  App.  D.  C.  145,  10  L.  R.  A.  (N.  S.)  1103, 
10  Ann.  Cas.  601;  Haney  v.  St.  Regis  Mining  &  Smelting  Co.  (Mo.  App.)  205  S. 
W.  93;  Newton  v.  New  York  Cent.  &  H.  R.  R.  Co.,  96  App.  Div.  81,  89  N.  Y. 
Supp.  23,  affirmed  183  N.  Y.  556,  76  N.  E.  1102 ;  Pagan  v.  Southern  Ry.  Co.;  78 
S.  C.  413,  59  S.  E.  32,  13  Ann.  Cas.  1105* ;  Indiana  Car  Co.  v.  Parker,  100  Ind. 
193 ;  Rapho  v.  Moore,  68  Pa.  404,  8  Am.  Rep.  202. 

78  Murphy  v.  Railway  Co.,  88  N.  Y.  146,  42  Am.  Rep.  240;  Rowland  v.  Rail- 
way Co.,  54  Wls.  226,  11  N.  W.  529;  Carlson  v.  Railway  Co.,  21  Or.  450,  28 
Pac.  497.  See,  also,  Healy  v.  Buffalo,  R,  &  P.  Ry.  Co.,  Ill  App.  Div.  618,  97 
N.  Y.  Supp.  801,  where  the  defect  was  easily  discoverable  and  could  have  been 
repaired  by  the  servant.  Where  power  company  does  not  furnish  gloves  to  its 
linemen  handling  wires  electrically  charged,  it  Is  not  liable  because  of  defects 
in  gloves  which  the  lineman  himself  supplies.  Clements  v.  Elizabeth  City 
Electric  Light  &  Power  Co.,  176  N.  C.  14,  96  S.  E.  652. 

so  Columbus,  C.  &  I.  C.  Ry.  Co.  v.  Troesch,  68  111.  545,  18  Am.  Rep.  578 ;  New 
Castle  Bridge  Co.  v.  Steele,  38  Ind.  App.  194,  78  N.  E.  208;  Bennett  v.  HLra- 
melberger-Harrison  Lumber  Co.,  116  Mo.  App.  699,  94  S.  W.  808 ;  Chicago  &  N. 
W.  R.  Co.  v.  Scheuring,  4  111.  App.  533;  Gutridge  v.  Railway  Co.,  105  Mo.  520, 
16  S.  W.  943 ;  Hart  v.  Naumburg,  123  N.  Y.  641,  25  N.  E.  385. 

si  Ferris  v.  Shandy  (Okl.)  174  Pac.  1060;  Rio  Grande  Southern  R.  Co.  v. 
Campbell  (Colo.)  176  Pac.  275;  Levesque  v.  Charlton  Mills,  222  Mass.  305,  110 
N.  E.  307;  Wochner  v.  Pennslyvania  Engineering  Works,  251  Pa.  188,  96  Atl. 
471;  Columbian  Enameling  &  Stamping  Co.  v.  Burke,  37  Ind.  App.  518,  77  N. 
E.  409,  117  Am.  St  Rep.  337;  Gomez  v.  Tracey,  115  La.  824,  40  South.  234; 
Missouri,  K.  &  T.  Ry.  Co.  v.  Hagan,  42  Tex.  Civ.  App.  133,  93  S.  W.  1014;  Gal- 


§§  272-275)      MASTER'S  LIABILITY  FOR  INJURIES  TO  SERVANT         009 

tools,82  or  to  make  unusual  inspections  and  tests  to  discover  de- 
fects.83 The  master  is  not  bound  to  provide  against  danger  from 
an  unnecessary  or  inappropriate  use  of  appliances  by  the  servant.8* 
It  is  also  one  of  the  implied  duties  of  the  master  to  provide  a 
suitable  and  reasonably  safe  place  for  the  doing  of  the  work  to 
be  performed  by  the  servant,  and  to  keep  the  premises  in  a  reason- 
ably safe  condition.86  Thus  he  may  be  liable  for  leaving  danger- 

veston,  H  &  S.  A.  Ry.  Co.  v.  Parish  (Tex.  Civ.  App.)  93  S.  W.  682.  A  servant 
is  not  obliged  to  pass  judgment  on  his  master's  method  of  transacting  his  "busi- 
ness, but  may  assume  that  reasonable  care  will  be  used  in  furnishing  appli- 
ances necessary  for  its  operation.  Carter  v.  McDermott,  29  App.  D.  C.  145,  10 
L.  R.  A.  (N.  S.)  1103,  10  Ann.  Cas.  601. 

saKoschman  v.  Ash,  98  Minn.  312,  108  N.  W.  514,  116  Am.  St.  Rep.  373; 
Olson  v.  Great  Northern  Ry.  Co.,  141  Minn.  73,  169  N.  W.  482 ;  Turkey  Foot 
Lumber  Co.  v.  Wilson,  182  Ky.  42,  206  S.  W.  14 ;  Meyer  v.  Ladewig,  130  Wis. 
566,  110  N.  W.  419,  13  L.  R.  A.  (N.  S.)  684.  But  the  rule  that  a  master  is 
not  liable  for  injuries  resulting  from  defects  in  very  simple  tools  has  no  ap- 
plication where  the  master  has  actual  knowledge  of  the  defect  and  the  em- 
ploy6  has  not  Stork  v.  Charles  Stolper  Cooperage  Co.,  127  Wis.  318,  106 
N.  W.  841,  7  Ann.  Cas.  339. 

as  Brossman  v.  Drake  Standard  Mach.  Works,  232  111.  412,  83  N.  E.  936.  He 
is  chargeable  with  knowledge  of  defects  which  a  proper  inspection  would  have 
disclosed.  Rio  Grande  Southern  R.  Co.  v.  Campbell  (Colo.)  176  Pac.  275.  And 
see  Kimberlin  v.  Southwestern  Bell  Telephone  Co.  (Mo.  App.)  206  S.  W.  430. 

8*  Chicago  &  A.  R.  Co.  v.  Mahoney,  4  111.  App.  262;  Chicago,  B.  &  Q.  R. 
Co.  v.  Abend,  7  111.  App.  130;  Jayne  v.  Sebewaing  Coal  Co.,  108  Mich.  242,  65 
N.  W.  971.  See,  also,  Denver  &  R.  G.  R.  Co.  v.  Sporleder,  39  Colo.  142,  89 
Pac.  55,  holding  that,  where  the  servant  discarded  the  tools  furnished  him 
by  the  master,  not  because  they  were  unsafe,  but  because  they  were  not  handy, 
and  did  not  request  the  master  to  furnish  other  tools,  but  procured  tools 
which  seemed  to  him  to  be  more  convenient  by  which  he  was  subsequently 
injured,  he  was  not  entitled  to  claim  that  the  master  was  negligent  in  failing 
to  furnish  him  with  safe  tools. 

SB  Bailey,  Mast.  Liab.  2,  34 ;  Pagan  v.  Southern  Ry.  Co.,  78  S.  C.  413,  59 
S.  E.  32,  13  Ann.  Cas.  1105 ;  Armour  &  Co.  v.  Russell,  144  Fed.  614,  75  C.  C.  A. 
416,  6  L.  R.  A.  (N.  S.)  602 ;  Gay  v.  Hocking  Coal  Co.,  184  Iowa,  949,  169  N. 
W.  360;  Starkweather  v.  Dunlap,  103  Kan.  425,  173  Pac.  1122;  Kotera  v. 
American  Smelting  &  Refining  Co.,  80  Neb.  648,  114  N.  W.  945 ;  Coombs  v. 
Cordage  Co.,  102  Mass.  572,  3  Am.  Rep.  506 ;  Bessex  v.  Railway  Co.,  45  Wis. 
477 ;  Swoboda  v.  Ward,  40  Mich.  423 ;  Smith  v.  Car  Works,  60  Mich.  501,  27 
N.  W.  662,  1  Am.  St  Rep.  542;  Van  Dusen  v.  Letellier,  78  Mich.  502,  44  N. 
W.  572;  Haskell  &  Barker  Car  Co.  v.  Prezezdziankowski,  170  Ind.  1,  83 
N.  E.  626,  14  L.  R.  A.  (N.  S.)  972,  127  Am.  St.  Rep.  352;  St.  Louis,  I.  M. 
&  S.  Ry.  Co.  v.  Andrews,  79  Ark.  437,  96  S.  W.  183 ;  Williams  v.  Sleepy  Hollow 
Min.  Co.,  37  Colo.  62,  86  Pac.  337,  7  L.  R.  A.  (N.  S.)  1170,  11  Ann.  Cas.  Ill ; 
Rigsby  v.  Oil  Well  Supply  Co.,  115  Mo.  App.  297,  91  S.  W.  460;  Foreman 
v.  Eagle  Rice  Mill  Co.,  117  La.  227,  41  South.  555.  The  master  must  exercise 
reasonable  care.  The  Erie  Lighter  108  (D.  C.)  250  Fed.  490 ;  Turner  v.  Buchs- 
baum,  207  111.  App.  323;  Coral  Ridge  Clay  Products  Co.  v.  Collins,  181  Ky. 

TIFF.P.&  D.REL.(3o  ED.)— 39 


610  MASTER  AND  SERVANT  (Ch.  16 

ous  machinery,  such  as  cogwheels,  knives,  saws,  etc.,  so  exposed 
that  it  may  cause  injury,  when  it  ought  to  be  covered  or  protect- 
ed,86 or  where,  unknown  to  the  servant,  he  allows  stairways  to  re- 
main in  a  dangerous  condition.87  But  the  rule  requiring  the  master 
to  furnish  a  safe  place  to  work  does  not  apply  when  the  servant  is 


818,  205  S.  W.  958 ;  Camenzind  v.  Freeland  Furniture  Co.,  89  Or.  158,  174  Pac. 
139.  He  must  furnish  lights  if  necessary.  Long  v.  Foley,  82  W.  Va.  502,  96 
S.  E.  794.  A  higher  degree  of  care  in  providing  a  safe  place  in  which  to  work 
is  imposed  on  an  employer  whose  employes  are  underground,  with  scant 
means  of  escape  in  case  of  danger,  than  where  the  employes  are  not  subject 
to  unseen  dangers,  or  are  In  a  position  to  escape  readily.  Williams  v.  Sleepy 
Hollow  Min.  Co.,  37  Colo.  62,  86  Pac.  337,  7  L.  It.  A.  (N.  S.)  1170,  11  Ann.  Cas. 
111.  The  duty  to  furnish  a  safe  place  to  work  is  a  continuing  one.  Clegg  v. 
Seaboard  Steel  Casting  Co.,  34  Pa.  Super.  Ct.  63 ;  Gillespie  v.  Grand  Trunk 
Ry.  Co.,  150  Mich.  303,  113  N.  W.  1116.  But  see  Howard  v.  Beldenville  Lum- 
ber Co.,  129  Wis.  98,  108  N.  W.  48,  where  it  is  held  that,  while  a  master  is 
absolutely  required  to  furnish  a  servant  with  a  safe  place  to  work,  he  is 
required  to  exercise  only  ordinary  care  to  keep  the  place  safe,  and  if  it  be- 
comes unsafe  and  the  servant  is  injured  before  the  master  has  knowledge  of 
the  existence  of  the  danger  or  a  reasonable  opportunity  to  obtain  such  knowl- 
edge and  remedy  the  defect,  he  is  not  liable.  A  telephone  company  is  not 
bound  to  furnish  a  lineman  a  reasonably  safe  place  to  work,  as  against 
dangers  inherent  in  the  work  of  repair;  but  it  is  liable  if  the  danger  arises 
incident  to  the  place  where  the  work  is  done,  as  when  it  is  made  dangerous  by 
adjacent  electric  power  wires.  Kimberlin  v.  Southwestern  Bell  Telephone  Co. 
(Mo.  App.)  206  S.  W.  430. 

seNadau  v.  Lumber  Co.,  76  Wis.  128,  43  N.  W.  1135,  20  Am.  St.  Rep.  29; 
Chopin  v.  Combined  Locks  Paper  Co.,  134  Wis.  35,  114  N.  W.  95;  Flynn  v. 
Prince,  Colliers  &  Marston  Co.,  19S  Mass.  224,  84  N.  E.  321,  17  L.  R.  A.  (N. 
S.)  568 ;  Jones  v.  R.  '3.  Reynolds  Tobacco  Co.,  141  N.  C.  202,  53  S.  E.  849 ; 
Westman  v.  Wind  River  Lumber  Co.,  50  Or.  137,  91  Pac.  478;  Roff  v.  Summit 
Lumber  Co.,  119  La.  571,  44  South.  302 ;  Wolff  v.  Foote  Bros.  Gear  Mach.  Co., 
207  111.  App.  311 ;  Landrum  v.  Loose-Wiles  Biscuit  Co.  (Mo.  App.)  204  S.  W. 
930;  Camenzind  v.  Freeland  Furniture  Co.,  89  Or.  158,  174  Pac.  139;  Guyer- 
v.  Sterling  Laundry  Co.,  171  Cal.  761,  154  Pac.  1057;  Maurer  v.  Rogers,  250 
Pa.  447,  95  Atl.  593.  The  employer  is  not  bound  to  guard  all'  dangerous  places, 
but  only  such  places  as  he  may  reasonably  anticipate  will  cause  injury  to 
servants.  National  Enameling  &  Stamping  Co.  v.  Padgett,  251"  Fed.  30,  f63 
C.  C.  A.  280.  The  covering  of  dangerous  machinery  is  provided  for  by  stat- 
ute in  most  states.  It  has  been  held  in  Indiana  that  a  failure  to  comply  with 
the  statute  is  negligence  per  se.  United  States  Cement  Co.  v.  Cooper  (Ind. 
App.)  82  N.  E.  981.  In  Iowa  it  has  been  held  that  the  statute  does  not  im- 
pose any  greater  duty  on  the  master  than  would  have  existed  without  it.  Sut- 
ton  v.  Des  Moines  Bakery  Co.,  135  Iowa,  390,  112  N.  W.  836.  Violation  of 
the  terms  of  the  Employers'  Liability  Act  (Laws  1911,  Or.,  p.  16),  relating  to 
guarding  machinery  is  negligence  per  se.  Camenzind  v.  Freeland  Furniture 
Co.,  89  Or.  158,  174  Pac.  139. 

.  ST  Sweet  v.  Coal  Co.,  78  Wis.  127,  47  N.  W.  182,  9  L.  B.  A,  861;  Conrad 
v.  Charles  A.  Stevens  &  Bros.,  205  111.  App.  494. 


§§  272-275)      MASTER'S  LIABILITY  FOR  INJURIES  TO  SERVANT         611 

engaged  in  actually  creating  the  place,88  nor  to  servants  whose  duty 
it  is  to  make  dangerous  places  safe,80  nor  when  the  work  in  itself 
constantly  changes  the  character  for  safety  of  the  place  where  the 
servant  is  employed.90 

It  is  also  the  implied  duty  of  the  master  to  provide  other  serv- 
ants sufficient  in  number,  and  reasonably  skilled  and  competent  for 
the  performance  of  the  service,  so  that  the  servant  will  not  be  ex- 
posed to  unnecessary  risk  from  unskillful  or  incompetent  fellow 
servants,  or  from  a  lack  of  a  sufficient  number  of  them.91  If  he 
knowingly  employs  or  retains  a  careless  person  or  drunkard,  for 
instance,  he  may  be  liable  if  injury  results  to  a  fellow  servant.  If 
there  is  no  negligence,  there  is  no  liability  for  injuries  caused  by  an 
incompetent  servant.92 

ss  Bertolami  v.  United  Engineering  &  Contracting  Co.,  120  App.  LHv.  192, 
105  N.  Y.  Supp.  90 ;  Calumet  Fuel  Co.  v.  Rossi  (Colo.)  173  Pac.  943. 

8»Kellyville  Coal  Co.  v.  Bruzas,  223  111.  595,  79  N.  E.  309;  Norman  v. 
Southern  Ry.  Co.,  119  Tenn.  401,  104  S.  W.  1088;  Houston's  Adm'x  v.  Sea- 
board Air  Line  Ry.,  123  Va.  290,  96  S.  E.  270 ;  Bird  v.  Utica  Gold  Min.  Co., 
2  Cal.  App.  674,  84  Pac.  256. 

»o  Village  of  Montgomery  v.  Robertson,  229  111.  466,  82  N.  E.  396;  Norman 
v.  Southern  Ry.  Co.,  119  Tenn.  401,  104  S.  W.  1088;  Falla  v.  Pine  Moun- 
tain Granite  Co.,  22  Ga.  App.  651,  97  S.  E.  114 ;  Kancevich  v.  Cudahy  Packing 
Co.,  184  Iowa,  799,  169  N.  W.  186;  Reid  v.  Medley's  Adm'r,  118  Va.  462,  87 
S.  E.  616;  Bird  v.  Utica  Gold  Min.  Co.,  2  Cal.  App.  674,  84  Pac.  256.  Where 
a  servant  is  engaged  in  the  business  of  wrecking  a  building,  his  master  is 
not  obligated  to  furnish  him  with  a  safe  place  to  work.  William  Grace  Co. 
v.  Kane,  129-111.  App.  247. 

si  Bailey,  Mast.  Liab.  3,  46;  Pennsylvania  R.  Co.  v.  Kartell,  157  Fed.  667, 
85  C.  C.  A.  335;  Indiana  Union  Traction  Co.  v.  Pring,  41  Ind.  App.  247,  83 
N.  E.  733 ;  Laning  v.  Railroad  Co.,  49  N.  Y.  521,  10  Am.  Rep.  417 ;  Booth  v. 
Railroad  Co.,  73  N.  Y.  38,  29  Am.  Rep.  97 ;  Baulec  v.  Railway  Co.,  59  N.  Y. 
356,  17  Am.  Rep.  325;  Wabash  Ry.  Co.  v.  McDaniels,  107  U.  S.  454,  2  Sup. 
Ct.  932,  27  L.  Ed.  605 ;  Horton  v.  Seaboard  Air  Line  Ry.,  145  N.  C.  132,  58 
S.  E.  993 ;  Carter  v.  McDermott,  29  App.  D.  C.  145,  10  L.  R.  A.  (N.  S.)  1103, 
10  Ann.  Gas.  601 ;  Hamann  Y.  Milwaukee  Bridge  Co.,  127  Wis.  550,  106  N.  W. 
1081,  7  Ann.  Cas.  458;  Markinovich  v.  Northern  Pac.  Ry.  Co.,  55  Mont.  139, 
174  Pac.  183;  Lusk  v.  Phelps  (Okl.)  175  Pac.  756;  Dames  v.  Winifred  Coal 
Co.,  184  Iowa,  619,  169  N.  W.  121 ;  Chicago  &  N.  W.  R.  Co.  v.  Moranda,  108 
111.  576 ;  Moss  v.  Railroad,  49  Mo.  167,  8  Am.  Rep.  126 ;  Gilman  v.  Railway 
Corp.,  10  Allen  (Mass.)  233,  87  Am.  Dec.  635;  Harper  v.  Railway  Co.,  47 
Mo.  567,  4  Am.  Rep.  353 ;  Michigan  Cent.  R.  Co.  v.  Dolan,  32  Mich.  513 ;  Hilts 
v.  Railway  Co.,  55  Mich.  440,  21  N.  W.  878;  Michigan  Cent.  R.  Co.  v.  Gilbert, 
46  Mich.  179,  9  N.  W.  243.  A  master,  in  selecting  employes,  must  exercise  rea- 
sonable care,  considering  the  nature  of  the  employment,  and,  if  that  involves 
special  knowledge,  only  men  of  special  knowledge  should  be  engaged.  Wood- 
ward Iron  Co.  v.  CUP!,  153  Ala.  215,  44  South.  969. 

92  Columbus,  C.  &  I.  C.  Ry.  Co.  v.  Troesch,  68  111.  545,  18  Am.  Rep.  578; 
Stone-Webster  Engineering  Corporation  v.  Collins,  199  Fed.  581,  118  C.  C.  A. 


612  MASTER  AND  SERVANT  (Ch.  16 

While  it  is  generally  sufficient  if  the  master  adopts  the  usual  and 
customary  methods  of  work,08  it  is  not  his  duty  to  adopt  the  most 
approved  methods ; 84  and  negligence  will  not  be  imputed  to  him, 
though  he  has  not  adopted  methods  used  by  others  in  the  same 
business.98  If,  however,  the  master  adopts  a  dangerous  method  of 
work,  he  should  take  correspondingly  appropriate  precautions  to 
guard  against  the  increased  danger.96  So  it  is  the  duty  of  a  mas- 
ter, where  the  nature  of  his  business  requires  it,  as  in  the  case  of 
railroad  companies,  to  promulgate  rules  for  the  protection  of  em- 
ployes.97 

It  is  the  master's  duty  to  inform  the  servant  of  latent  dangers, 
or  dangers  arising  from  extraneous  causes,  known  to  him,  where 
the  servant  has  no  knowledge  of  them,  and  knowledge  cannot  be 


55;  Santiago  v.  John  E.  Walsh  Stevedore  Co.,  152  App.  Div.  697,  137  N.  Y. 
Supp.  611 ;  Woodward  Iron  Co.  v.  Curl,  153  Ala.  215,  44  South.  969.  The  fact 
that  the  employe  did  not  understand  English  does  not  show  negligence  on  the 
part  of  the  master  in  employing  him.  Date  v.  New  York  Glucose  Co.,  114 
App.  Div.  789,  100  N.  Y.  Supp.  171,  affirmed  190  N.  Y.  510,  83  N.  E.  1124. 

»3  Larson  v.  St.  Paul,  M.  &  M.  Ry.  Co.,  43  Minn.  423,  45  N.  W.  722;  Allen  v. 
Burlington,  C.  R,  &  N.  Ry.  Co.,  64  Iowa,  94,  19  N.  W.  870. 

»*  O'Neil  v.  Karr,  110  App.  Div.  571,  97  N.  Y.  Supp.  148. 

»5  Pearsall  v.  New  York  Cent  &  H.  R.  R.  Co.,  189  N.  Y.  474,  82  N.  E.  752. 

»•  Smith  v.  Rock  Island,  A.  &  L.  R.  Co.,  119  La.  537,  44  South.  290. 

97  Bailey,  Mast  Ldab.  71;  Slater  v.  Jewett,  85  N.  Y.  62,  39  Am.  Rep.  627; 
Abel  v.  Canal  Co.,  103  N.  Y.  581,  9  N.  E.  325,  57  Am.  Rep.  773 ;  Illinois  Cent. 
R.  Co.  v.  Whittemore,  43  111.  420,  92  Am.  Dec.  138 ;  Chicago,  B.  &  Q.  R.  Co. 
v.  McLallen,  84  111.  109;  Lewis  v.  Seifert,  116  Pa.  628,  11  Atl.  514,  2  Am. 
St  Kep.  631;  Moore  v.  Dublin  Cotton  Mills,  127  Ga.  609,  56  S.  E.  839,  10 
L.  R,  A.  (X.  S.)  772 ;  Ryan  v.  Delaware  &  Hudson  Co.,  114  App.  Div.  2GS,  99 
N.  Y.  Supp.  794,  affirmed  188  N.  Y.  559,  80  N.  E.  1119 ;  Morrison  v.  San  Pedro, 
L.  A.  &  S.  L.  R.  Co.,  32  Utah,  85,  88  Pac.  998;  Illinois  Cent.  R.  Co.  v.  Pane- 
biango,  129  111.  App.  1,  affirmed  227  111.  170,  81  N.  E.  53;  St  Louis  &  S.  F.  R. 
Co.  v.  Ames  (Tex.  Civ.  App.)  94  S.  W.  1112.  An  employer  is  required  to  make 
rules  to  guard  against  only  such  accidents  as  may  reasonably  be  foreseen. 
Dzkowski  v.  Reynoldsville  Carting  Co.,  216  N.  Y.  173,  110  N.  E.  442,  reversing 
155  App.  Div.  943,  140  N.  Y.  Supp.  1117.  Failure  to  make  a  rule  will  not  con- 
stitute negligence  when  no  occasion  had  ever  arisen  to  show  the  necessity 
therefor  prior  to  the  injury  complained  of.  St.  Louis,  K.  C.  &  C.  R,  Co.  v. 
Conway,  156  Fed'.  234,  86  C.  C.  A.  1.  To  bind  the  servant  the  rule  must  be 
properly  published  or  brought  to  his  attention.  Anderson  v.  Great  Northern 
Ry.  Co.,  102  Minn.  355,  113  N.  W.  913.  When  the  duties  to  be  performed 
are  simple  and  the  appliances  easily  understood,  the  promulgation  of  rules 
is  not  necessary.  Blust  v.  Pacific  States  Telephone  Co.,  48  Or.  34,  84  Pac. 
847.  Though  the  master  makes  an  express  rule  prohibiting  certain  acts  by  his 
servants,  if  they  constantly  disregard  the  rule  with  his  knowledge  and  ac- 
quiescence, it  is  a  waiver  of  the  rule  by  the  master.  Powhatan  Lime  Co.  v. 
Whetzel's  Adm'x,  118  Va.  161,  86  S.  E.  898. 


§§  272-275)      MASTER'S  LIABILITY  FOR  INJURIES  TO  SERVANT 

imputed  to  him.98  And  he  must  inform  the  servant  of  obvious 
dangers,  where  the  servant  cannot  be  presumed  to  appreciate  or 
understand  them.  This  is  peculiarly  applicable  to  servants  of  ten- 
der years."  It  applies  also,  however,  to  inexperienced  persons  of 
mature  years.1  It  is  not  enough  to  inform  the  servant  gener- 
ally that  the  service  is  dangerous,  but  the  particular  perils  and 
dangers  must  be  pointed  out.2  There  is  no  duty  to  give  informa- 
tion as  to  dangers  which  are  known  or  obvious,  and  which  he  has 


»s  Bailey,  Mast  Ldab.  109  et  seq.;  Coombs  v.  Cordage  Co.,  102  Mass.  572, 
3  Am.  Rep.  506 ;  Baxter  v.  Roberts,  44  Cal.  187,  13  Am.  Rep.  160 ;  Markle- 
witz  v.  Olds  Motor  Works,  152  Mich.  113,  115  N.  W.  999 ;  Swiercz  v.  Illinois 
Steel  Co.,  231  111.  456,  83  N.  E.  168 ;  Hardy  v.  Chicago,  R.  I.  &  P.  Ry.  Co., 
139  Iowa,  314,  115  N.  W.  8,  19  L.  R.  A.  (N.  S.)  997 ;  Southern  Cotton  Oil  Co. 
v.  Skipper,  125  Ga.  368,  54  S.  E.  110;  Edington  v.  St.  Louis  &  S.  F.  R.  Co.,  204 
Mo.  61,  102  S.  W.  491 ;  Southern  Cotton  Oil  Co.  v.  Gladman,  1  Ga.  App.  259, 
58  S.  E.  249;  Kemp  v.  McNeill  Cooperage  Co.  (Del.  Super.)  104  Atl.  639; 
Murphy  v.  Old  Colony  St.  Ry.  Co.,  230  Mass.  333,  120  N.  E.  361 ;  Casey-Hedges 
Co.  v.  Oliphant,  228  Fed.  636,  143  C.  C.  A.  158.  If  the  master  fails  to  warn 
the  servant  of  a  danger  known  to  the  master,  he  is  also  liable  for  any  in- 
jury to  the  servant  from  an  unknown  danger  connected  with  the  same  appli- 
ance or  material.  Collins  v.  Pecos  &  N.  T.  R,  Co.  (Tex.  Com.  App.)  212  S. 
W.  477.  But  see  Pinkley  v.  Chicago  &  E.  I.  R.  Co.,  246  111.  370,  92  N.  E.  896, 
35  L.  R.  A.  (N.  S.)  679. 

»»  Rolling  Mill  Co.  v.  Corrigan,  46  Ohio  St.  283,  20  N.  E.  466,  15  Am.  St. 
Rep.  596 ;  Tagg  v.  McGeorge,  155  Pa.  368,  26  Atl.  671,  35  Am.  St.  Rep.  889 ; 
Dowling  v.  Allen,  74  Mo.  13,  41  Am.  Rep.  298 ;  Ford  v.  Anderson,  139  Pa.  263, 
21  Atl.  18;  Steiler  v.  Hart,  65  Mich.  644,  32  N.  W.  875;  Chopin  v.  Paper 
Co.,  83  Wis.  192,  53  N.  W.  452;  Burrows  v.  Ozark  White  Lime  Co.,  82  Ark. 
343,  101  S.  W.  744 ;  Beck  v.  Standard  Cotton  Mills,  1  Ga.  App.  278,  57  S.  E. 
998;  Long  v.  Folwell  Bros.  &  Co.,  228  Pa.  314,  77  Atl.  557;  Chambers  v. 
Woodbury  Mfg.  Co.  of  Baltimore  County,  106  Md.  496,  68  Atl.  290,  14  L.  R.  A. 
(N.  S.)  383;  Woodstock  Iron  Works  v.  Kline,  149  Ala.  391,  43  South.  362. 
But  where  an  infant  employe  who  had  reached  the  age  of  discretion  gave  as- 
surances that  he  understood  the  duties  of  his  position,  the  employer  was 
not  obliged  to  give  him  any  special  instructions.  King  v.  Woodstock  Iron 
Co.,  143  Ala.  632,  42  South.  27. 

1  Fox  v.  Color  Works,  84  Mich.  676,  48  N.  W.  203 ;    Metayer  v.  Grant,  222 
Mass.  254,  110  N.  E.  310;    Chopin  v.  Paper  Co.,  83  Wis.  192,  53  N.  W.  452; 
Parkhurst  v.  Johnson,  50  Mich.  70,  15  N.  W.  107,  45  Am.  Rep.  28;    Pennsyl- 
vania R.  Co.  v.  Kartell,  157  Fed.  667,  85  C.  C.  A.  335;    Coughlan  v.  Phila- 
delphia, B.  &  W.  R.  Co.,  6  Pennewill  (Del.)  242,  67  Atl.  148 ;   American  Brake 
Shoe  &  Foundry  Co.  v.  Toluszis,  125  111.  App.  622 ;   Sias  v.  Consolidated  Light- 
ing Co.,  79  Vt.  224,  64  Atl.  1104 ;    Vohs  v.  Shorthill  &  Co.,  130  Iowa,  538,  107 
N.  W.  417 ;  Wikstrom  v.  Preston  Mill  Co.,  48  Wash.  164,  93  Pac.  213 ;   Swiercz 
v.  Illinois  Steel  Co.,  231  111.  456,  83  N.  E.  168. 

2  Bailey,  Mast.  Liab.  112 ;    Bradburn  v.  Wabash  R.  Co.,  134  Mich.  575,  9G 
N.  W.  929;   Addicks  v.  Christoph,  62  N.  J.  Law,  786,  43  Atl.  196,  72  Am.  St. 
Rep.  687. 


614  MASTER  AND  SERVANT  (Ch.  16 

a  right  to  presume  the  servant  understands.8  The  master  cannot 
be  held  liable,  however,  for  failure  to  warn  the  servant  of  every 
transitory  risk,  when  the  only  thing  the  servant  does  not  know  is 
the  precise  time  when  the  danger  -will  supervene.4 

The  master  is  not  an  insurer  of  his  servant's  safety ; 5  but  in  the 
performance  of  the  above  duties  he  is  bound  only  to  use  ordinary, 
reasonable  care.6  The  question  arises,  what  is  ordinary  care?  It 
was  said  in  a  late  case,  by  the  Supreme  Court  of  the  United  States : 
"There  is  no  fixed  standard  in  the  law  by  which  a  court  is  enabled 
to  arbitrarily  say  in  every  case  what  conduct  shall  constitute  ordi- 
nary care  under  any  and  all  circumstances.  The  terms  'ordinary 
care,'  'reasonable  prudence,'  and  such  like  terms,  as  applied  to  the 
conduct  and  affairs  of  men,  have  a  relative  significance,  and  can- 
not be  arbitrarily  defined.  What  may  be  deemed  care  in  one  case 
may  under  different  surroundings  and  circumstances  be  gross  neg- 
ligence. The  policy  of  the  law  has  relegated  the  determination  of 
such  questions  to  the  jury,  under  proper  instructions  from  the 
court.  It  is  their  province  to  note  the  special  circumstances  and 

3  Kancevich  v.  Cudahy  Packing  Co.,  184  Iowa,  799,  169  N.  W.  186 ;  E.  I. 
Du  Pont  De  Nemours  &  Co.  v.  Hipp,  123  Va.  280,  96  S.  E.  280;  Marshall  v. 
Chicago,  R.  I.  &  P.  Ry.  Co.,  131  Minn.  392,  155  N.  W.  208 ;  National  Drainage 
Co.  v.  Bell,  121  Ark.  633,  ISO  S.  W.  984. 

*  Bailey,  Mast.  Lialx  112,  118 ;  Smith  v.  Car  Works,  60  Mich.  506,  27  N. 
W.  662,  1  Am.  St.  Rep.  542;  Pittsburgh,  C.  &  St.  L.  Ry.  Co.  v.  Adams,  105 
Ind.  152,  5  N.  E.  187 ;  Crowley  v.  Mills,  148  Mass.  228,  19  N.  E.  344 ;  Cross  v. 
Boston  &  M.  R.  Co.,  223  Mass.  144,  111  N.  E.  676 ;  Fones  v.  Phillips,  39  Ark. 
17,  43  Am.  Rep.  264 ;  Boyd  v.  Taylor,  195  Mass.  272,  81  N.  E.  277 ;  Elsenberg 
v.  Fraim.  215  Pa.  570,  64  Atl.  793;  White  v.  Owosso  Sugar  Co.,  149  Mich. 
473,  112  N.  W.  1125;  Hardy  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  139  Iowa,  314, 
115  N.  W.  8,  19  L.  R.  A.  (N.  S.)  997 ;  Magone  v.  Portland  Mfg.  Co.,  51  Or.  21, 
93  Pac.  450;  Norman  v.  Southern  Ry.  Co.,  119  Tenn.  401,  104  S.  W.  108S. 

e  Southern  Ry.  Co.  v.  Carr,  153  Fed.  106,  82  C.  C.  A.  240 ;  Cudahy  Packing 
Co.  v.  Wesolowski,  75  Neb.  786,  106  N.  W.  1007;  Meyers  v.  Ideal  Steam 
Laundry,  60  Wash.  134,  110  Pac.  803 ;  Guest  v.  Edison  Illuminating  Co.,  150 
Mich.  438,  114  N.  W.  226;  Grace  v.  Globe  Stove  &  Range  Co.,  40  Ind.  App. 
326,  82  N.  E.  99;  Zeis  v.  St.  Louis  Brewing  Ass'n,  205  Mo.  638,  104  S.  W. 
99;  Vilter  Mfg.  Co.  v.  Kent,  47  Tex.  Civ.  App.  462,  105  S.  W.  525. 

«  Bailey,  Mast.  Liab.  S  et  seq. ;  Chicago,  B.  &  Q.  R.  Co.  v.  Avery,  109  111. 
314;  Richardson  v.  Cooper,  88  111.  270;  Devlin  v.  Smith,  89  N.  T.  470,  42 
Am.  Rep.  311;  McDonnell  v.  Oceanic  Steam  Nav.  Co.,  143  Fed.  480,  74  C.  C. 
A.  500;  American  Bridge  Co.  v.  Seeds,  144  Fed.  605,  75  C.  C.  A.  407,  11  L. 
R.  A.  (N.  S.)  1041;  Coughlan  v.  Philadelphia,  B.  &  W.  R.  Co.,  6  Pennewill 
(Del.)  242,  67  Atl.  148;  Swiercz  v.  Illinois  Steel  Co.,  231  111.  456.  83  N.  E.  168: 
Brusseau  v.  Lower  Brick  Co.,  133  Iowa,  245,  110  N.  W.  577;  Kremer  v. 
Eagle  Mfg.  Co.,  120  Mo.  App.  247,  96  S.  W.  726 ;  Blonski  v.  American  Enam- 
eled Brick  &  Tile  Co.,  72  N.  J.  Law,  409,  60  Atl.  1101. 


§§  272-275)     MASTER'S  LIABILITY  FOR  INJURIES  TO  SERVANT         615 

surroundings  of  each  particular  case,  and  then  say  whether  the 
conduct  of  the  parties  in  that  case  was  such  as  should  be  expected 
of  reasonably  prudent  men  under  a  similar  state  of  affairs."  7  "The 
rule,"  said  the  New  York  court,  "is  simple,  practical,  andveasy  of 
application.  The  question  is,  what  would  a  majority  of  men  of 
common  intelligence  have  done  under  like  circumstances?  Ordi- 
nary care,  skill,  and  diligence  is  such  a  degree  of  care,  skill,  and 
diligence  as  men  of  ordinary  prudence,  under  similar  circumstanc- 
es, usually  employ."  8  The  degree  of  care  must  be  proportionate 
to  the  dangers  of  the  employment,9  in  so  far  as  those  dangers  are 
known  to  the  master.10 

While  the  general  rule  applies  even  when  the  servant  is  a  mi- 
nor,11 yet  the  age,  intelligence,  experience,  and  capacity  of  the  serv- 
ant must  be  taken  into  consideration  in  determining  whether  the 
master  has  exercised  due  care.12 

The  master's  duty  to  furnish  suitable  tools  and  appliances,  and  to 
keep  them  in  repair,  to  provide  and  maintain  a  reasonably  safe  place 
for  work,  to  promulgate  reasonable  rules,  where  they  are  required 
by  the  nature  of  the  business  and  to  inform  servants  of  hidden 
dangers,  and  instruct  young  or  inexperienced  servants,  is  personal, 
and  he  cannot  delegate  them.  He  may  delegate  the  performance 

7  Grand  Trunk  Ry.  Co.  v.  Ives,  144  U.  S.  417,  12  Sup.  Ct.  679,  36  L.  Ed.  485. 

s  Ernst  v.  Railroad  Co.,  35  N.  Y.  9,  90  Am.  Dec.  761 ;  Grace  v.  Globe  Stove 
&  Range  Co.,  40  Ind.  App.  326,  82  N.  E.  99;  Atoka  Coal  &  Mining  Co.  v. 
Miller,  7  Ind.  T.  104,  104  S.  W.  555.  And  see  Marsh  v.  Chickering,  101  N.  Y. 
400,  5  N.  E.  56 ;  Read  v.  Morse,  34  Wis.  318 ;  Michigan  Cent.  R.  Co.  v.  Cole- 
man,  28  Mich.  448 ;  Holly  v.  Gaslight  Co.,  8  Gray  (Mass.)  131,  69  Am.  Dec.  233  ; 
Cayzer  v.  Taylor,  10  Gray  (Mass.)  280,  69  Am.  Dec.  317 ;  Vinton  v.  Schwab,  32 
Vt.  612. 

»  Bow'ring  v.  Wilmington  Malleable  Iron  Co.,  5  Pennewill  (Del.)  594,  66  Atl. 
369. 

10  Charron  v.  Union  Carbide  Co.,  151  Mich.  687,  115  N.  W.  718. 
.  11  Decatur  Car  Wheel  Co.  v.  Terry,  148  Ala.  674,  41  South.  839.  Under  the 
statutes  of  some  of  the  states,  regulating  the  employment  of  child  Labor,  the 
employment  qf  a  child  under  the  age  prescribed  is  negligence  per  se.  See 
Perry  v.  Tozer,  90  Minn.  431,  97  N.  W.  137,  101  Am.  St.  Rep.  416 ;  Telinko  v. 
Pittsburgh  Coal  Co.,  68  Pa.  Super.  Ct.  143 ;  Waterman  Lumber  Co.  v.  Beatty 
(Tex.  Civ.  App.)  204  S.  W.  448;  Norman  v.  Virginia-Pocahontas  Coal  Co.,  68 
W.  Va.  405,  69  S.  E.  857,  31  L.  R.  A.  (N.  S.)  504 ;  Platt  v.  Southern  Photo 
Material  Co.,  4  Ga.  App.  159,  60  S.  E.  1068. 

12  Daniels  v.  Johnston,  39  Colo.  177,  89  Pac.  811 ;  Bare  v.  Crane  Creek 
Coal  &  Coke  Co.,  61  W.  Va.  2$.  55  S.  E.  907,  8  L.  R.  A.  (N.  S.)  284.  123  Am. 
St.  Rep.  966 ;  Chambers  v.  Woodbury  Mfg.  Co.,  106  Md.  496,  68  Atl.  290,  14  L. 
R.  A.  (N.  S.)  383;  Beck  v.  Standard  Cotton  Mills,  1  Ga.  App.  278,  57  S.  E. 
998. 


616  MASTER  AND  SERVANT  (Ch.  16 

of  them,  but  his  responsibility  remains.18     There  is  considerable 
conflict  between  the  courts  in  the  application  of  this  doctrine.14 

Assumption  of  Risk  by  Servant 

It  is  said  that,  when  a  person  enters  into  the  service  of  another, 
he  impliedly  contracts  that  he  possesses  the  ordinary  skill  and  ex- 
perience of  those  engaged  in  the  occupation  which  he  undertakes, 
that  he  will  exercise  ordinary  care  to  protect  himself  while  en- 
gaged in  that  occupation,  and  that  he  will  assume  the  risks  of  his 
employment.15  Mr.  Jaggard,  in  his  work  on  Torts,  thus  states  the 
general  rules  relating  to  the  assumption  of  the  risks  of  his  employ- 
ment by  a  servant.16  As  he  points  out,  the  risks  which  the  serv- 
ant assumes  may  arise  (a)  from  circumstances  exclusive  of  the  risk 
of  fellow  servants,  and  may  be  either  (1)  the  ordinary  risks  of  the 
employment;  (2)  the  extraordinary  risks  of  the  employment;  or  (b) 
from  the  negligence  of  fellow  servants. 

is  Bailey,  Mast.  Liab.  128.  Selecting  tools  and  appliances.  Morton  v.  De- 
troit, B.  C.  &  A.  R.  Co.,  81  Mich.  423,  46  N.  W.  -Ill ;  Moore  v.  Dublin  Cotton 
Mills,  127  Ga.  609,  56  S.  B.  839,  10  L.  R.  A.  (N.  S.)  772 ;  Russell  v.  Borden's 
Condensed  Milk  Co.  (Utah)  174  Pac.  633;  Phillips  v.  Corbin  &  Fannin,  166 
Ky.  638,  179  S.  W.  586 ;  Klunk  v.  Blue  Pearl  Granite  Co.,  170  N.  C.  70,  86 
S.  E.  800;  Mississippi  Cent.  R.  Co.  v.  Hardy,  88  Miss.  732,  41  South.  505; 
Kane  v.  Babcock  &  Wilcox  Co.,  75  N.  J.  Law,  698,  67  Atl.  1014;  Huber  v. 
Whale  Creek  Iron  Works,  125  App.  Div.  184,  109  N.  Y.  Supp.  177 ;  Anderson 
v.  Milliken  Bros.,  123  App.  Div.  614,  108  N.  Y.  Supp.  61;  Jemnienskl  v.  Lob- 
dell  Car  Wheel  Co.,  5  Pennewill  (Del.)  385,  63  Atl.  935.  But  the  operation  of 
appliances  can  be  delegated.  Tilley  v.  Rockingham  County  Light  &  Power 
Co.,  74  N.  H.  316,  67  Atl.  946.  Inspection  of  tools  and  appliances.  Martin  v. 
Wabash  R.  Co.,  142  Fed.  650,  73  C.  C.  A.  646,  6  Ann.  Cas.  582 ;  Northern  Pac. 
R.  Co.  v.  Herbert,  116  U.  S.  642,  6  Sup.  Ct.  590,  29  L.  Ed.  755;  Newton  v. 
New  York  Cent  &  H.  R.  R.  Co.,  96  App.  Div.  81,  89  N.  Y.  Supp.  23,  affirmed 
183  N.  Y.  556,  76  N.  E.  1102.  Place  of  work.  Combs  v.  Rountree  Const.  Co., 
205  Mo.  367,  104  S.  W.  77 ;  McGrath  v.  Fogel  (Mo.  App.)  182  S.  W.  813 ;  Ben- 
ton  v.  Finkbine  Lumber -Co.,  118  Miss.  558,  79  South.  346;  Jemnienski  v. 
Lobdell  Car  Wheel  Co.,  5  Pennewill  (Del.)  385,  63  Atl.  935 ;  Smith  v.  Dayton 
Coal  &  Iron  Co.,  115  Tenn.  543,  92  S.  W.  62,  4  L,  R.  A.  (N.  S.)  1180;  Antioch 
Coal  Co.  v.  Rockey,  169  Ind.  247,  82  N.  E.  76.  Employment  of  other  servants. 
Laning  v.  New  York  Cent.  R,  Co.,  49  N.  Y.  521,  10  Am.  Rep.  417.  Promulga- 
tion of  rules.  Moore  v.  Dublin  Cotton  Mills,  127  Ga.  609,  56  S.  E.  839,  10 
L.  R.  A.  (N.  S.)  772;  Gaska  v.  American  Car  &  Foundry  Co.,  127  Mo.  App. 
169,  105  S.  W.  3.  Warning  and  instructing.  Moore  v.  Dublin  Cotton  Mills, 
127  Ga.  609,  56  S.  E.  839,  10  L.  R.  A.  (X.  S.)  772;  Murphy  v.  Old  Colony  St. 
Ry.  Co.,  230  Mass.  333,  120  N.  E.  361;  Schminkey  v.  T.  M.  Sinclair  &  Co., 
137  Iowa,  130,  114  N.  W.  612. 

i*  Bailey,  Mast.  Liab.  128-141,  where  the  doctrine  is  discussed  at  length. 
See  post,  p.  626. 

IB  2  Jag.  Torts,  1013  et  seq. ;   Bailey,  Mast.  Liab.  142  et  seq. 

i«  See  2  Jag.  Torts,  1014  et  seq. 


§§  272-275)     MASTER'S  LIABILITY  FOR  INJURIES  TO  SERVANT         617 

Some — Ordinary  Risks 

"Excluding  the  negligence  of  fellow  servants,  a  servant  assumes 
the  ordinary  risks  of  his  employment,  with  the  instrumentalities, 
in  the  place,  and  under  the  rules  of  work  for  which  he  is  engaged, 
which  are  reasonably  necessary  and  incidental  to  it,  and  which  are 
apparent  to  ordinary  observation:  provided  (a)  he  knew  and  ap- 
preciated, or  should  have  known  and  appreciated,  the  risks  and 
dangers,  in  the  prudent  exercise  of  his  senses  and  common  sense, 
regard  being  had  to  his  age,  capacity,  and  experience ;  and  provided 
(b)  the  master  has  exercised  reasonable  care  to  prevent  them."  1T 
If  a  piece  of  machinery  is  obviously  dangerous,  ordinarily,  one  who 
undertakes  to  work  at  it  assumes  the  risk  of  injuries  therefrom.18 

IT  See  2  Jag.  Torts,  1014  et  seq. ;  Borden  v.  Daisy  Roller  Mill  Co.,  98  Wis. 
407,  74  N.  W.  91,  67  Am.  St.  Rep.  816 ;  Davidson  v.  Cornell,  132  N.  T.  228, 
30  N.  E.  573;  Houston's  Adm'x  v.  Seaboard  Air  Line  Ry.,  123  Va.  290,  96  S. 
E.  270;  Falla  v.,  Pine  Mountain  Granite  Co.,  22  Ga.  App.  651,  97  S.  E.  114; 
Whalen  v.  Michigan  Cent.  R.  Co.,  114  Mich.  512,  72  N.  W.  323;  Illinois 
Steel  Co.  v.  Saylor,  129  111.  App.  73,  affirmed  226  111.  283,  SO  N.  E.  783 ;  Den- 
ver &  R.  G.  R.  Co.  v.  Warring,  37  Colo.  122,  86  Pac.  305;  Missouri,  K.  & 
T.  Ry.  Co.  v.  Hudson  (Okl.)  175  Pac.  743;  Southern  Cotton  Oil  Co.  v.  Skip- 
per, 125  Ga.  368,  54  S.  E.  110;  Rigsby  v.  Oil  Well  Supply  Co.,  115  Mo.  App. 
297,  91  S.  W.  460.  Negligence  of  the  master  is  not  one  of  the  risks  assumed 
by  the  servant.  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Riley,  145  Fed.  137,  76  C.  C.  A. 
107,  7  Ann.  Cas.  327 ;  Jensen  v.  Kyer,  101  Me.  106,  63  Atl.  389 ;  Superior  Coal 
&  Mining  Co.  v.  Kaiser,  229  111.  29,  82  N.  E.  239,  120  Am.  St.  Rep.  233.  Neither 
does  the  servant  assume  the  risk  of  a  violation  of  an  express  statutory  ob- 
ligation imposed  on  the  master  for  the  protection  of  employes.  Murphy  v. 
Grand  Rapids  Veneer  Works,  142  Mich.  677,  106  N.  W.  211,  Cooley  Cas. 
Persons  and  Domestic  Relations,  329;  Chicago  &  A.  Ry.  Co.  v.  Walters,  120 
111.  App.  152,  affirmed  217  111.  87,  75  N.  E.  441.  While  the  rule  as  to  as- 
sumption of  risk  applies  to  minors  (Decatur  Car  Wheel  Co.  v.  Terry,  148  Ala. 
674.  41  South.  839),  his  age,  intelligence,  and  capacity  are  to  be  considered 
(Moss  v.  Mosley,  148  Ala.  168,  41  South.  1012;  Magone  v.  Portland  Mfg. 
Co.,  51  Or.  21,  93  Pac.  450),  and  he  will  be  held  to  have  assumed  only  such 
risks  as  he  could  understand  and  appreciate  (Laverty  v.  Hambrick,  61  W.  Va. 
687,  57  S.  E.  240:  Beckwich  Organ  Co.  v.  Malone,  106  S.  W.  809,  32  Ky. 
Law  Rep.  596).  The  federal  Employers'  Liability  Act  (IL  S.  Comp.  St.  §§ 
8657-8665)  does  not  abolish  the  common-law  rule  as  to  the  assumption  of 
the  ordinary  risks  of  employment.  King  v.  Norfolk  &  S.  R.  Co.,  176  N.  C.  301, 
97  S.  E.  29,  certiorari  denied  Norfolk  &  S.  R.  Co.  v.  King,  249  U.  S.  599,  39 
Sup.  Ct.  257,  63  L.  Ed.  795 

i*> Anderson  v.  Lumber  Co.,  47  Minn.  128,  49  N.  W.  664;  Crowley  v.  Pacific 
Mills,  148  Mass.  228,  19  N.  E.  344 ;  Hickey  v.  Taaffe,  105  N.  Y.  26,  12  N.  E. 
286 ;  Preutiss  v.  Manufacturing  Co.,  63  Mich.  478,  30  N.  W.  109 ;  Chicago,  B. 
&  Q.  R.  Co.  v.  Merckes,  36  111.  App.  195 ;  United  States  Rolling  Stock  Co.  v. 
Chadwick,  35  111.  App.  474;  O'Keefe  v.  Thorn  (Pa.)  16  Atl.  737;  Townsend 
v.  Langles  (C.  C.)  41  Fed.  919 ;  McCormick  Harvesting  Mach.  Co.  v.  Zakzew- 
ski,  220  111.  522,  77  N.  E.  147,  4  L.  R.  A.  (N.  S.)  848,  reversing  121  111.  App. 


618  MASTER  AND  SERVANT  (Ch.  16 

And,  generally,  if  he  works  with  machinery  or  tools  which  he 
knows,  or  should  reasonably  know,  to  be  defective,  and  therefore 
dangerous,  he  assumes  the  risk.19  The  rule  is  the  same  where  a 
servant  works  in  a  place  which  is  obviously  dangerous,  or  which  he 
knows  to  be  dangerous.20 

Same — Extraordinary  Risks 

"The  servant  cannot  recover  from  his  employer  for  damages  con- 
sequent upon  extraordinary  risks  which  he  has  knowingly  assum- 
ed." 21  A  servant  does  not  assume  extraordinary  risks  unless  he 


26;  Moran  v.  Mulligan,  .110  App.  Div.  208,  97  N.  Y.  Supp.  7;  Rigsby  v.  Oil 
Well  Supply  Co,  115  Mo.  App.  297,  91  S.  W.  460.  Effect  of  statutes  providing 
for  guarding  machinery  to  modify  the  rule  as  to  assumption  of  risk,  see 
Inland  Steel  Co.  v.  Kachwinski,  151  Fed.  219,  80  C.  C.  A.  571;  Southern  Pac. 
Co.  v.  Allen,  48  Tex.  Civ.  App.  66, 106  S.  W.  441 ;  Johnson  v.  Far  West  Lumber 
Co.,  47  Wash.  492,  92  Pac.  274 ;  Rector  v.  Bryant  Lumber  &  Shingle  Mill  Co., 
41  Wash.  556,  84  Pac.  7. 

ie  Michael  v.  Stanley,  75  Md.  464,  23  Atl.  1094;  Bradley  v.  Vandalia  R. 
Co.,  207  111.  App.  592;  Loving  v.  Atlantic  Southern  R.  Co.,  184  Iowa,  435,  168 
N.  W.  910;  Rietman  v.  Stolte,  120  Ind.  314,  22  N.  E.  304;  Way  v.  Railway 
Co.,  40  Iowa,  341;  Anderson  v.  Railroad  Co.,  39  Minn.  523,  41  N.  W.  104; 
Shaw  v.  Sheldon,  103  N.  Y.  667,  9  N.  E.  183;  American .  Smelting  &  Re- 
fining Co.  v.  McGee,  157  Fed.  69,  84  C.  C.  A.  573 ;  Kath  v.  East  St.  Louis  &  S. 
Ry.  Co.,  232  111.  126,  83  N.  E.  533,  15  L.  R.  A.  (N.  S.)  1109;  Banks  v.  Scho- 
fleld's  Sons  Co.,  126  Ga.  667,  55  S.  E.  939;  United  States  Wind  Engine  &  Pump 
Co.  v.  Butcher,  223  111.  638,  79  N.  E.  304,  114  Am.  St.  Rep.  336,  affirming  126 
111.  App.  302. 

20  2  Jag.  Torts,  1017;    Bailey,  Mast.  Liab.  142  et  seq.;    McGrath  v.  Rail- 
way Co.,  60  Fed.  555,  9  C.  C.  A.  133;    Ragon  v.  Railway  Co.,  97  Mich.  265, 
56  N.  W.  612,  37  Am.  St.  Rep.  336;    Gibson  v.  Railway  Co.,  63  N.  Y.  449.  20 
Am.  Rep.  552 ;   Feely  v.  Cordage  Co.,  161  Mass.  426,  37  N.  E.  368 ;   Coal  Creek 
Min.  Co.  v.  Davis,  90  Tenn.  711,  18  S.  W.  387;   Norfolk  &  W.  Ry.  Co.  v.  Gess- 
wine,  144  Fed.  56,  75  C.  C.  A.  214;   Welch  v.  Carlucci  Stone  Co.,  215  Pa.  34, 
64  Atl.  392,  7  Ann.  Cas.  292;    Knorpp  v.  Wagner,  195  Mo.  637,  93  S.  W.  961; 
Schillinger  Bros.  Co.  v.  Smith,  225  111.  74,  80  N.  E.  65;    Rigsby  v.  Oil  Well 
Supply  Co.,  115  Mo.  App.  297,  91  S.  W.  460.     Blasting  in  quarry.     Falla  v. 
Pine  Mountain  Granite  Co.,  22  Ga.  App.  651,  97  S.  E.  114.     Injury  to  lum- 
berman by  dislodged  logs.     D.  E.  Hewitt  Lumber  Co.  v.  Cisco,  181  Ky.  612, 
205  S.  W.  677.    While  the  employe1  is  bound  to  take  notice  of  obvious  de- 
fects in  the  place  where  he  is  working,  he  is  not  required  to  make  an  exam- 
ination for  hidden  defects.     Superior  Coal  &  Mining  Co.  v.  Kaiser,  229  111. 
29,  82  N.  E.  239,  120  Am.  St.  Rep.  233.     But  even  when  the  servant  is  en- 
gaged in  making  safe  a  known  dangerous  place  he  does  not  assume  the  risk 
of  the  master's  negligence.    Jacobson  v.  Hobart  Iron  Co.,  103  Minn.  319.  114 
N.  W.  951. 

21  2  Jag.  Torts,  1019,  1020,  and  cases  there  cited.     Under  the  Employers' 
Liability  Act,  state  and  federal,  there  is  no  assumption  of  extraordinary 
risks.    See  post,  p.  634.  ~ 


§§  272-275)      MASTER'S  LIABILITY  FOR  INJURIES  TO  SERVANT        619 

has  actual  or  constructive  knowledge  of  the  danger.22  But  if  he 
has  such  knowledge,  and  voluntarily  undertakes  the  work,  the  risP 
is  assumed.23 

Same — Exceptions  to  the  Rule 

The  principles  under  which  a  servant  is  held  to  assume  the  risks 
of  the  employment  do  not  apply  in  the  following  cases :  24  (a) 
Where,  though  he  may  know  of  the  defect  or  danger,  he  does  not 
necessarily,  and  should  not  reasonably,  know  of  or  appreciate  the 
consequent  risk.25  (b)  Where,  without  proper  notice  of  increased 
risk,  he  is  put  to  a  service  outside  of,  and  more  dangerous  than, 
the  employment  for  which  he  was  engaged.26  (c)  Where  the  mas- 

22  Richlands  Iron  Co.  v.  Elkins,  90  Va.  249,  17  S.  E.  890;  Schminkey  v. 
T.  M.  Sinclair  &  Co.,  137  Iowa,  130,  114  N.  W.  612 ;  Place  v.  Grand  Trunk  R. 
Co.,  SO  Vt.  196,  67  Atl.  545. 

23Q.off  v.  Railway  Co.,  86  Wis.  237.  56  N.  W.  465;  McDuffee's  Adm'x  v. 
Boston  &  M.  R.  R.,  81  Vt.  52,  69  Atl.  124,  130  Am.  St.  Rep.  1019 ;  Sullivan  v. 
Railroad  Co.,  161  Mass.  125,  36  N.  E,  751 ;  Kelley  v.  Railway  Co.,  35  Minn.  490, 
29  N.  W.  173 ;  Texas  &  P.  Ry.  Co.  v.  Rogers,  57  Fed.  378,  6  C.  C.  A.  403 ; 
Wheeler  v.  Berry,  95  Mich.  250,  54  N.  W.  876 ;  Smith  v.  Railroad  Co.,  42  Minn. 
87,  43  N.  W.  968. 

2  *  The  following  statements  are  taken  in  substance  from  2  Jag.  Torts,  1021. 

2B  Coombs  v.  Cordage  Co.,  102  Mass.  572,  3  Am.  Rep.  506;  CHOCTAW,  O. 
&  G.  R.  CO.  v.  JONES,  77  Ark.  367,  92  S.  W.  244,  4  L.  R.  A.  (N.  ».)  837,  7  Ann. 
Cas.  430,  Cooley  Cas.  Persons  and  Domestic  Relations,  323;  Mellor  v.  Man- 
ufacturing Co.,  150  Mass.  362,  23  N.  E.  100,  5  L.  R.  A.  792;  Steen  v.  Railroad 
Co.,  37  Minn.  310,  34  N.  W.  113;  Davidson  v.  Cornell,  132  N.  Y.  228,  30  N. 
E.  573. 

26  Consolidated  Coal  Co.  of  St.  Louis  v.  Haenni,  48  111.  App.  115,  affirmed 
146  111.  614,  35  N.  E.  162;  Union  Pac.  R.  Co.  v.  Fort,  17  Wall.  553,  21  L.  Ed. 
739;  American  Brake  Shoe  &  Foundry  Co.  v.  Hank,  129  111.  App.  188;  Oolitic 
Stone  Co.  v.  Ridge  (In'd.  App.)  80  N.  E.  441;  Jacksonville  Electric  Co.  v. 
Sloan,  52  Fla.  257,  42  South.  516.  But  "if  a  servant  of  full  age  and  ordinary 
intelligence,  upon  being  required  by  his  master  to  perform  other  duties  more 
dangerous  and  complicated  than  those  embraced  in  his  original  hiring,  un- 
dertakes such  duties  knowing  their  dangerous  character,  although  unwilling- 
ly, and  from  fear  of  losing  his  employment,  and  he  is  injured,  he  cannot 
maintain  an  action  for  the  injury."  Leary  v.  Railroad  Co.,  139  Mass.  580,  2 
N.  E.  115,  52  Am.  Rep.  733.  He  assumes  the  risk  if  he  voluntarily  engages 
in  a  dangerous  work  outside  .the  scdpe  of  his  employment.  National  Fire 
Proofing  Co.  v.  Andrews,  158  Fed.  294,  85  C.  C.  A.  526 ;  Pittsburgh,  C.  &  St. 
L.  Ry.  Co.  v.  Adams,  105  Ind.  151,  5  N.  E.  187 ;  Prentiss  v.  Kent  Furniture 
Mfg.  Co.,  63  Mich.  478,  30  N.  W.  109.  So,  too,  if  he  pursues  a  dangerous 
method  when  a  safe  one  is  provided.  Suttle  v.  Choctaw,  O.  &  G.  R.  Co.,  144 
Fed.  668,  75  C.  C.  A.  470;  Perry  v.  Michigan  Alkali  Co.,  150  Mich.  537,  114 
N.  W.  315.  Even  the  specific  command  of  his  superior  to  pursue  a  danger- 
ous method  will  not  wholly  excuse  him.  Chicago  Great  Western  Ry.  Co.  v. 
Grotty,  141  Fed.  913,  73  C.  C.  A.  147,  4  L.  R.  A.  (N.  S.)  832.  But  it  may  be 
taken  into  consideration  and  weight  as  one  of  the  attendant  circumstances. 


620  MASTER  AND  SERVANT  (Ch.  16 

ter  has  promised  to  remove  the  peril,27  unless  the  danger  is  so  im- 
mediate and  imminent  that  an  ordinarily  prudent  man  would  not 
continue  in  the  service.28  (d)  Even  in  the  latter  case,  the  risk 
will  not  be  assumed  if  the  duty  to  continue  in  the  dangerous  service 
is  required  or  justified  by  some  emergency  approved  by  law.29  (e) 
Where  the  servant  does  not  voluntarily  expose  himself  to  the 
peril.80  To  these  it  may  be  added  that  the  servant  does  not  as- 

Jensen  v.  Kyer,  101  Me.  106,  63  Atl.  389.  If  the  superior  assured  him  there 
was  no  danger,  the  exception  will  apply.  American  Brake  Shoe  &  Foundry 
Co.  v.  Jankus,  121  111.  App.  267 ;  Bush  v.  West  Yellow  Pine  Co.,  2  Ga.  App. 
295,  58  S.  E.  529.  A  servant  cannot  be  held  to  have  assumed  the  risk  at- 
tendant upon  working  in  a  certain  place  to  which  he  was  ordered  to  go  by 
his  foreman,  as  the  direction  itself  was  an  assurance  on  the  part  of  the 
employer,  that  the  place  was  reasonably  safe.  Olson  v.  Seldovia  Salmon 
Co.,  88  Wash.  225,  152  Pac.  1033. 

2T  Hough  v.  Railway  Co.,  100  U.  S.  213,  25  L.  Ed.  612 ;  Chicago  Drop  Forge 
&  Foundry  Co.  v.  Van  Dam,  149  111.  337,  36  N.  E.  1024;  Greene  v.  Railway  Co., 
31  Minn.  248,  17  N.  W.  378,  47  Am.  Rep.  785.  There  must  be  a  clear  prom- 
ise to  repair.  A  complaint  and  an  acknowledgment  of  the  defect  are  not 
enough.  Breig  v.  Railway  Co.,  98  Mich.  222,  57  N.  W.  118;  Chesapeake,  O.  &  S. 
W.  R.  Co.  v.  McDowell,  24  S.  W.  607,  16  Ky.  Law  Rep.  1 ;  Wilson  v.  Railroad 
Co.,  37  Minn.  326,  33  .1.  W.  908,  5  Am.  St.  Rep.  851;  Mahan  v.  Glee,  87  Mich. 
161,  49  N.  W.  556 ;  Viou  v.  Brooks-Scanlon  Lumber  Co.,  99  Minn.  97,  108  N.  W. 
891,  9  Ann.  Gas.  318 ;  Monarch  Mining  &  Development  Co.  v.  De  Voe,  36  Colo. 
270,  85  Pac.  dS3.  But  see  Kistner  v.  American  Steel  Foundries,  233  111.  35, 
84  N.  E.  44,  when  it  was  held  that  the  rule  which  exempts  an  employe"  from 
assuming  the  risk  of  injury  because  of  defective  machinery,  where  a  promise 
to  repair  is  made,  applies  only  where  particular  skill  and  experience  are 
necessary  to  appreciate  the  defect  and  the  danger,  or  where  he  can  have  but 
little  knowledge  of  the  machinery,  and  does  not  apply  where  he  is  engaged 
in  ordinary  labor  or  the  tools  used  are  of  simple  construction  with  which  he  is 
as  familiar  as  the  master.  The  exemption  of  the  servant  continues  only  for  a 
reasonable  time,  however.  Utah  Consol.  Min.  Co.  v.  Paxton,  150  Fed.  114, 
80  C.  C.  A.  68;  Louisville  Bolt  &  Iron  Co.  v.  Hart,  122  Ky.  731,  92  S.  W. 
951;  Western  Coal  &  Mining  Co.  v.  Burns,  84  Ark.  74,  104  S.  W.  535.  And 
If  he  continues  in  the  employment  after  a  breach  of  the  employer's  promise 
to  repair  he  reassumes  the  risk.  Andrecsik  v.  New  Jersey  Tube  Co.,  73  N.  J. 
Law,  664,  63  Atl.  719,  4  L.  R.  A.  (N.  S.)  913,  9  Ann.  Cas.  1006. 

2  s  Greene  v.  Railway  Co.,  31  Minn.  248,  17  N.  W.  378,  47  Am.  Rep.  785; 
Russell  v.  Tillotson,  140  Mass.  201,  4  N.  E.  231;  Crosby  v.  Cuba  R.  Co.  (C. 
C.)  158  Fed.  144;  Utah  Consol.  Minn. 'Co.  v.  Paxton,  150  Fed.. 114,  80  C.  C. 
A.  68 ;  Leeson  v.  Sawmill  Phoenix,  41  Wash.  423,  83  Pac.  891. 

2»  2  Jag.  Torts,  1027;  Lalor  v.  Railway  Co.,  52  111.  401,  4  Am.  Rep.  616; 
Moore  v.  Railway  Co.,  85  Mo.  588;  Strong  v.  Railway  Co.,  94  Iowa,  380,  62 
N.  W.  799. 

80  2  Jag.  Torts,  1028.  As  where  a  seaman  obeys  the  orders  of  his  superior 
officer,  being  required  by  statute  to  do  so,  Eldridge  v.  Steamship  Co.,  134  X. 
T.  187,  32  N.  E.  66;  ,or  where  a  convict  works  in  a  dangerous  place,  under 
control  and  orders  of  a  guard,  Chattahooch.ee  Brick  Co.  v.  Braswell,  92  Ga. 
631,  18  S.  E.  1015 ;  or  where  a  servant,  by  the  wrong  of  the  master,  is  placed 


§§  272-275)     MASTER'S  LIABILITY  FOB  INJURIES  TO  SERVANT          621 

sume  the  risk,  where  the  negligence  charged  and  proved  is  the  dis- 
regard of  some  duty  imposed  by  statute.31 

Same — Negligence  of  Fellow  Sevants 

Among  the  ordinary  risks  of  the  service  which  are  assumed  by  a 
servant,  as  between  himself  and  his  master,  is  the  risk  of  negligence 
upon  the  part  of  a  fellow  servant.32  The  leading  case  in  this  coun- 
try is  Farwell  v.  Boston  &  Worcester  Railroad  Corp.,83  decided  in 
the  Supreme  Court  of  Massachusetts  in  1842,  in  which  it  was  held 
that  a  master  is  not  liable  to  his  servant  for  an  injury  due  to  the 
negligence  of  a  fellow  servant  engaged  in  the  same  general  em- 
ployment, where  he  has  used  due  diligence  in  the  selection  of  such 
fellow  servant,  and  has  furnished  to  his  employe  suitable  means  for 
carrying  on  the  business  in  which  they  are  engaged.34 

in  a  position  of  imminent  peril,  and  necessarily  adopts  a  dangerous  means  of 
escaping  therefrom,  Louisville  &  N.  R.  Co.  v.  Shivell's  Adm'x,  18  S.  W.  944, 
13  Ky.  Law  Rep.  902. 

si  Steele  v.  Atlantic  Coast  Line  R.  Co.,  103  S.  C.  102,  87  S.  E.  639;  Dobra 
v.  Lehigh  Valley  Coal  Co.,  250  Pa.  313,  95  Atl.  465 ;  Boone  v.  Lohr,  172  Iowa, 
440,  154  N.  W.  591;  Inland  Steel  Co.  v.  King,  184  Ind.  294,  110  N.  E.  62; 
Devine  v.  Chicago  &  C.  R.  R.  Co.,  168  111.  App.  450 ;  Wallin  v.  Arcadia  &  B.  R. 
Ry.  Co.,  172  Mich.  466,  138  N.  W.  270;  Wright  v.  Yazoo  &  M.  V.  R.  Co. 
(D.  C.)  197  Fed.  94. 

32  Westinghouse,  Church,  Kerr  &  Co.  v.  Callaghan,  155  Fed.  397,  83  C.  C. 
A.  669,  19  L.  R.  A.  (N.  S.)  361;  King  v.  Ford,  121  App.  Div.  404,  106  N.  Y. 
Supp.  50;  Haskell  &  Barker  Car  Co.  v.  Prezezdziankowski,  170  Ind.  1,  83 
N.  E.  626,  14  L.  R.  A.  (N.  S.)  972,  127  Am.  St.  Rep.  352;  Pagan  v.  South- 
ern Ry.,  78  S.  C.  413,  59  S.  E.  32 ;  Grandin  v.  Southern  Pac.  Co.,  30  Utah,  360, 
85  Pac.  357.  He  does  not  assume  the  risk  arising  from  the  carelessness  of  an 
incompetent  servant  of  whose  incapability  he  is  ignorant.  Baldwin  v.  Ameri- 
can Writing  Paper  Co.,  196  Mass.  402,  82  N.  E.  1.  Nor  of  negligence  of 
such  nature  that  it  could  not  have  been  anticipated.  Vindicator  Consol.  Gold 
Min.  Co.  v.  Firs  ..crook,  36  Colo.  498,  86  Pac.  313,  10  Ann.  Cas.  1108.  Under 
statutes 'in  some  states  the  risk  of  negligence  of  a  fellow  servant  is  not  as- 
sumed. Phinney  v.  Illinois  Cent.  R.  Co.,  122  Iowa,  488,  98  N.  W.  358 ;  Rhodes 
v.  Des  Moines,  I.  F.  &  N.  Ry.  Co.,  139  Iowa,  327,  115  N.  W.  503;  Malcom 
v.  Fuller,  152  Mass.  160,  25  N.  E.  83 ;  Graves  v.  Union  Oil  Co.,  36  Cal.  App. 
766,  173  Pac.  618;  Lusk  v.  Phelps  (Okl.)  175  Pac.  756.  Under  the  federal 
Employers'  Liability  Act  a  railroad  employ^  does  not  assume  the  risk  of 
injury  from  the  negligence  of  a  fellow  servant.  Portland  Terminal  Co.  v. 
Jarvis,  227  Fed.  8,  141  C.  C.  A.  562.  See,  also,  Baltimore  &  O.  R.  Co.  v.  Bran- 
son, 242  U.  S.  623,  37  Sup.  Ct.  244,  61  L.  Ed.  534,  reversing  128  Md.  678,  98 
Atl.  225 ;  Anest  v.  Columbia  &  P.  S.  R.  Co.,  89  Wash.  609,  154  Pac.  1100. 

ss  4  Mete.  49,  38  Am.  Dec.  339. 

S*  See,  generally,  Johnson  v.  Boston  &  M.  R.  R.,  78  Vt.  344,  62  Atl.  1021, 
4  L.  R.  A.  (N.  S.)  856 ;  Lapre  v.  Woronco  St.  Ry.  Co.,  196  Mass.  363,  82  N. 
E.  9 ;  Beleal  v.  Northern  Pac.  Ry.  Co.,  15  N.  D.  318,  108  N.  W.  33,  11  Ann. 
€as.  921;  Fallou  v.  Mertz,  110  App.  Div.  755,  97  N.  Y.  Supp.  417;  Louisville 


622  MASTER  AND   SERVANT  (Cll.  16 

\Yhen  we  seek  for  a  rule  which  will  determine  when  the  rela- 
tionship of  fellow  servants  exists,  so  as  to  exempt  the  master  from 
liability,  we  meet  with  a  hopeless  conflict  in  the  decisions.  It  is 
impossible  to  state  any  rule  that  will  apply  in  all  the  states,  or  even 
in  any  considerable  number  of  them.  There  is  no  question  in  the 
law  of  master  and  servant  upon  which  there  is  greater  conflict  and 
confusion  in  the  cases.  Not  even  are  the  decisions  of  the  same 
court  always  consistent. 

In  order  that  the  rule  may  apply,  it  is  necessary  that  the  serv- 
ants shall  have  a  common  master.85  It  is  not  enough  for  the  em- 
ployment to  be  the  same,  if  the  masters  are  different.86  If  a  mas- 

&  N.  R.  Co.  v.  Wyatt's  Adm'r,  93  S.  W.  601,  29  Ky.  Law  Rep.  437;  Chenall 
v.  Palmer  Brick  Co.,  125  Ga.  671,  54  S.  E.  663 ;  McDonald  v.  California  Tim- 
ber Co.,  7  Cal.  App.  375,  94  Pac.  376 ;  Net>o  Coal  Co.  v.  Barnett,  167  Ky.  170, 
180  S.  W.  79;  Gallant  v.  Great  Northern  Paper  Co.,  114  Me.  208,  95  Atl. 
889;  Devonish  v.  Imperial  Investing  Corp.  (Sup.).  155  N.  Y.  Supp.  787;  Cur- 
tis Shumway  v.  Williams  (Va.)  86  S.  E.  848;  Atoka  Coal  &  Mining  Co.  v.  Mil- 
ler, 7  Ind.  T.  104,  104  S.  W.  555 ;  McMahon  v.  Bangs,  5  Pennewill  (Del.)  178, 

62  Atl.  1098.     If,  however,  the  injury  is  due  to  the  concurrent  negligence 
of  the  master  and  a  fellow  servant,  the  master  is  not  relieved  from  liability. 
Haskell  &  Barker  Car  Co.  v.  Prezezdziankowski,  170  Ind.  1,  83  N.  E.  626, 
14  L.  R.  A.  (N.  S.)   972,  127  Am.   St.  Rep.  352;    Trickey  v.  Clark,   50  Or. 
516,  93  Pac.  457;    Gordon  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  129  Iowa,  747,  106 
N.  W.  177;   Moore  v.  St.  Ixmis  Transit  Co.,  193  Mo.  411,  91  S.  W.  1060;   Root 
v.  Kansas  City  Southern  Ry.  Co.,  195  Mo.  348,  92  S.  W.  621,  6  L.  R.  A.  (N. 
S.)  212;   Conine  v.  Olympia  Logging  Co.,  42  Wash.  50,  84  Pac.  407;    Howard 
v.  Beldenville  Lumber  Co.,  129  Wis.  98,  108  N.  W.  48 ;    Ryan  v.  Delaware  & 
Hudson  Co.,  114  App.  Div.  268,  99  N.  Y.  Supp.  794.    This  exception  applies, 
also  when  the  negligence  of  the  master  is  that  of  a  vice  principal.    Roebling 
Const.  Co.  v.  Thompson,  229  111.  42,  82  N.  E.  196 ;    Chicago  &  E.  I.  R.  Co.  v. 
Kimmel,  221  111.  547,  77  N.  E.  936. 

SB  Westinghouse,  Church,  Kerr  &  Co.  v.  Callnghan,  155  Fed.  397,  83  C.  C. 
A.  669,  19  L.  R.  A.  (N.  S.)  361 ;  Missouri,  K.  &  T.  Ry.  Co.  v.  Hendricks,  49 
Tex.  Civ.  App.  314,  108  S.  W.  745;  Fisher  v.  Minegeaux,  73  N.  J.  Law,  424, 

63  Atl.  902.     When  the  injured  servant  at  the  time  of  the  injury  occupied 
the  position  of  a  mere  licensee  in  a  vehicle  driven  by  another  servant  of 
the  same  master,  the  relation  of  fellow  servant  did  not  exist.     Pigeon  v. 
Lane,  80  Conn.  237,  67  Atl.  886,  11  Ann.  Cas.  371. 

s«  2  Jag.  Torts,  1033,  1034;  Sullivan  v.  Railroad  Co.,  112  N.  Y.  643,  20  N. 
E.  569,  8  Am.  St  Rep.  793;  Powers  v.  Maine  Central  R.  R.,  114  Me.  198,  95 
Atl.  879;  Ellinghouse  v.  Ajax  Live-Stock  Co.,  51  Mont.  275,  152  Pac.  481, 
L.  R.  A.  1916D,  836 ;  Kelly  v.  Tyra,  103  Minn.  176.  114  N.  W.  750,  115  N.  W. 
636,  17  L.  R.  A.  (N.  S.)  334;  Droge  v.  John  N.  Robins  Co.,  123  App.  Div.  537, 
108  N.  Y.  Supp.  457 ;  Johnson  v.  Spear,  76  Mich.  130,  42  N.  W.  1092,  15  Am.  St 
Rep.  298;  Kelly  v.  Johnson,  128  Mass.  530,  35  Am.  Rep.  398;  Phillips  v.  Rail- 
way Co.,  64  Wis.  475,  25  N.  W.  544.  The  rule,  for  instance,  does  not  apply  to 
servants  of  different  masters  working  on  the  same  building.  Morgan  v.  Smith, 
159  Mass.  570,  35  N.  E.  101 ;  McDonough  v.  Pelham  Hod  Elevating  Co.,  Ill 


§§  272-275)      MASTER'S  LIABILITY  FOR  INJURIES  TO  SERVANT         623 

ter  lends  or  hires  his  servant  to  another  for  a  particular -employ- 
ment, he  becomes,  as  to  that  employment,  a  servant  of  the  person 
to  whom  he  is  lent  or  hired,  and  a  fellow  servant  of  the  servants  of 
such  person.37 

A  person  who,  without  any  employment,  voluntarily  undertakes 
to  perform  services  for  another,  or  to  assist  the  servants  of  an- 
other in  the  service  of  the  master,  either  at  the  request  or  without 
the  request  of  such  servants,  who  have  no  authority  to  employ, 
other  servants,  stands  in  the  relation  of  a  servant,  for  the  time 
being,  and  is  to  be  regarded  as  assuming  all  the  risks  incident  to 
the  business,  including  the  risk  of  injuries  from  the  negligence  of 
fellow  servants.38 

"The  English  courts  determine  the  relationship  of  fellow  serv- 
ants by  the  test  of  common  employment.  *  *  *  The  American 
cases  incline  to  adopt,  as  the  test  of  whether  the  plaintiff  and  an- 
other servant  are  fellow  servants  of  the  same  master,  the  doc- 
trine of  vice  principal.  A  vice  principal,  as  distinguished  from  a 
fellow  servant,  is  one  to  whom  the  master  has  delegated  some 
absolute  duty  owed  by  the  master  to  his  servants.  For  the  neg- 
ligence of  such  vice  principal — at  least,  so  long  as  he  is  engaged 
in  the  performance  of  such  duty — the  master  is  responsible  to  other 

App.  Div.  585,  98  N.  Y.  Supp.  00;  Burrill  v.  Eddy,  160  Mass.  19S,  35  N.  E.  483. 
So,  servants  of  different  railroad  companies,  operating  connecting  lines,  are 
not  within  the  rule.  Sullivan  v.  Railroad  Co.,  112  N.  T.  643,  20  N.  C.  569,  8 
Am.  St.  Rep.  793;  Jennings  v.  Philadelphia,  B.  &  W.  Ry.  Co.,  29  App.  D.  C.  219, 
10  Ann.  Cas.  761 ;  2  Jag.  Torts,  1035,  and  cases  there  cited.  So,  also,  the  serv- 
ants of  a  man  are  not  the  fellow  servants  of  the  servants  of  an  independent  con- 
tractor employed  by  him  on  a  piece  of  work.  Coughtry  v.  Woolen  Co.,  56 
N.  Y.  124,  15  Am.  Rep.  387;  Lake  Superior  Iron  Co.  v.  Erickson,  39  Mich. 
492,  33  Am.  Rep.  423;  Goodfellow  v.  Railroad  Co.,  106  Mass.  461;  2  Jag. 
Torts,  1036,  and  cases  cited. 

ST  Hasty  v.  Sears,  157  Mass.  123,  31  N.  E.  759,  34  Am.  St.  Rep.  267;  Cregan 
v.  Marston,  126  N.  Y.  573,  27  N.  E.  952,  22  Am.  St.  Rep.  854  j  Illinois  Cent. 
R.  Co.  v.  Cox,  21  111.  20,  71  Am.  Dec.  298. 

38  There  are  some  cases  against  this  doctrine,  or  apparently  so.  It  is  sup- 
ported, however,  by  the  great  weight  of  authority.  Street  Ry.  Co.  v.  Bolton, 
43  Ohio  St.  224,  1  N.  E.  333,  54  Am.  Rep.  803;  Jackson  v.  Southern  Ry.,  73 
S.  C.  557,  54  S.  E.  231 ;  Mayton  v.  Railway  Co.,  63  Tex.  77,  51  Am.  Rep.  637 ; 
New  Orleans,  J.  &  G.  N.  R.  Co.  v.  Harrison,  48  Miss.  112,  12  Am.  Rep.  356; 
Flower  v.  Railroad  Co.,  69  Pa.  210,  8  Am.  Rep.  251 ;  Osborne  v.  Railroad  Co., 
68  Me.  49,  28  Am.  Rep.  16.  This  doctrine  applies  to  volunteers  only.  It  does 
not  apply  to  passengers  or  shippers,  or  their  servants,  assisting  tne  employe's 
of  a  carrier  to  remove  impediments  to  travel,  or  to  expedite  delivery  of  goods. 
Wright  v.  London  &  N.  W.  R.  Co.,  1  Q.  B.  Div.  252 ;  Street  Ry.  Co.  v.  Bolton, 


624  MASTER  AND  SERVANT  (Ch.  16 

servants."89  It  is  the  well  established  rule  that  the  duty  which  a 
master  owes  his  servant  to  furnish  safe  premises  and  appliances, 
and  competent  fellow  servants,  and  to  promulgate  proper  rules, 
is  a  personal  duty,  of  which  he  cannot  relieve  himself  by  delegating 
it  to  an  agent  or  employe.40  If  he  intrusts  this  duty  to  a  servant, 
he  makes  him,  to  that  extent,  a  vice  principal,  and  not  a  fellow 
servant,  of  the  other  servants.41  If  the  servant  intrusted  with  such 
duties  is  negligent  in  the  performance  of  them,  and  injury  there- 
by results  to  another  servant,  the  negligence  is  that  of  the  master, 
and  he  is  liable.42  Thus  far  the  courts  in  this  country  agree.  But 

• 

43  Ohio  St.  224,  1  N.  E.  333,  54  Am.  Rep.  803;  Eason  v.  Railway  Co.,  65 
Tex.  977,  57  Am.  Rep.  606.  But  see  Potter  v.  Faulkner,  1  Best  &  S.  800. 

s»2  Jag.  Torts,  1036,  1037.  And  see  Bailey,  Mast.  Liab.  226-393,  where 
the  question  is  considered  at  length  and  the  doctrine  in  each  state  set  forth. 

40  Parry  Mfg.  Co.  v.  Eaton,  41  Ind.  App.  81,  83  N.  E.  510;    Harper  v.  lola 
Portland  Cement  Co.,  76  Kan.  612,  93  Pac.  179,  93  Pac.  343;    Kiley  v.  Rut- 
land R.  Co.,  80  Vt.  536,  68  Atl.  713,  13  Ann.  Cas.  269 ;    Koerner  v.  St.  Louis 
Car  Co.,  209  Mo.  141,  107  S.  W.  481,  17  L.  R.  A.  (N.  S.)  292;    National  Fire 
Proofing  Co.  v.  Andrews,  158  Fed.  294,  85  C.  C.  A.  526;    Gussart  v.  Green- 
leaf  Stone  Co.,  134  Wis.  418,  114  N.  W.  799;    Kane  v.  Babcock  &  Wilcox 
Co.,  75  N.  J.  Law,  698,  67  Atl.  1014 ;    Schminkey  v.  T.  M.  Sinclair  &  Co.,  137 
Iowa,  130,  114  N.  W.  612;   Hatch  v.  Pike  Mfg.  Co.,  73  N.  H.  521,  63  Atl.  306; 
Missouri,  K.  &  T.  Ry.  Co.  v.  Wise  (Tex.  Civ.  App.)  106  S.  W.  465;   El  Paso 
&  S.  W.  Ry.  Co.  v.  Smith,  50  Tex.  Civ.  App.  10,  108  S.  W.  988.     See,  also, 
ante,  p.  615. 

41  Harper  v.  Tola  Portland  Cement  Co.,  76  Kan.  612,  93  Pac.  179,  93  Pac. 
343;   Bailey  v.  Swallow,  98  Minn.  104,  107  N.  W.  727;    Koerner  v.  St.  Louis 
Car  Co.,  209  Mo.  141,  107  S.  W.  481,  17  L.  R.  A.  (N.  S.)  292 ;    Sandusky  Port- 
land Cement  Co.  v.  Rice,  40  Ind.  App.  726,  82  N.  E.  1007 ;    Donk  Bros.  Coal 
&  Coke  Co.  v.  Thil,  128  111.  App.  249,  affirmed  228  111.  233,  81  N.  E.  857; 
Illinois  Steel  Co.  v.  Ziemkowski,  220  111.  324,  77  N.  E.  190,  4  L.*  R.  A.  (N. 
S.)  1181;    Cleveland,  C.,  C.  &  St.  L.  Ry.  Co.  v.  Austin,  127  111.  App.  281; 
Lammi  v.  Milford  Pink  Granite  Quarries,  196  Mass.  336,  82  N.  E.  26;    El 
Paso  &  S.  W.  Ry.  Co.  v.  Smith,  50  Tex.  Civ.  App.  10,  108  S.  W.  988;    Mis- 
souri, K.  &  T.  R,  Co.  v.  Wise  (Tex.  Civ.  App.)  106  S.  W.  465;   Clegg  v.  Sea- 
board Steel  Casting  Co.,  34  Pa.  Super.  Ct.  63. 

*2  Donahue  v.  C.  H.  Buck  &  Co.,  197  Mass.  550,  83  N.  E.  1090,  18  L.  R. 
A.  (N.  S.)  476;  Lammi  v.  Milford  Pink  Granite  Quarries,  196  Mass.  336, 
vj  X.  E,  26;  Byrne  \t  Learnard,  191  Mass.  269,  77  N.  E.  316;  Sampson  v. 
Holbrook,  192  Mass.  421,  78  N.  E.  127;  Parry  Mfg.  Co.  v.  Eaton,  41  Ind. 
App.  81,  83  N.  E.  510 ;  Sandusky  Portland  Cement  Co.  v.  Rice,  40  Ind.  App. 
726,  82  N.  E.  1007;  Harper  v.  lola  Portland  Cement  Co.,  76  Kan.  612,  93 
Pac.  179,  93  Pac.  343;  Southern  R.  Co.  v.  Rutledge,  4  Ga.  App.  80,  60  S. 
E.  1011;  Ongaro  v.  Twohy,  49  Wash.  93,  94  Pac.  916;  Stecher  Cooperage 
Works  v.  Steadman,  78  Ark.  381,  94  S.  W.  41;  Archer-Foster  Const.  Co.  v. 
Vaughn,  79  Ark.  20,  94  S.  W.  717.  But  the  master  is  not  responsible  for 
an  error  in  judgment  or  even  negligence  on  the  part  of  the  servant  in  carry- 
ing out  details  which  the  master  could  delegate.  Vogel  v.  American  Bridge- 


§§  272-275)     MASTER'S  LIABILITY  FOR  INJURIES  TO  SERVANT         625 

when  we  go  a  step  further  we  meet  with  a  conflict  in  the  decisions 
of  the  various  courts. 

In  New  York  this  doctrine  is  made  the  test  of  the  relation  of 
fellow  servant,  and  the  rank  or  grade  of  the  negligent  servant  is 
immaterial.  It  is  said  in  a  leading  New  York  case :  "The  liability 
of  the  master  does  not  depend  upon  the  grade  or  rank  of  the  em- 
ploye whose  negligence  causes  the  injury.  A  superintendent  of  a 
factory,  although  having  power  to  employ  men,  or  represent  the 
master  in  other  respects,  is,  in  the*  management  of  the  machinery, 
a  fellow  servant  of  the  other  operatives.  On  the  same  principle, 
however  low  the  grade  or  rank  of  the  employe,  the  master  is  lia- 
ble for  injuries  caused  by  him  to  another  servant,  if  they  result 
from  the  omission  of  some  duty  of  the  master,  which  he  has  con- 
fided to  such  inferior  employe.  *  *  *  The  liability  of  the  mas- 
ter is  thus  made  to  depend  upon  the  character  of  the  act  in  the  per- 
formance of  which  the  injury  arises,  without  regard  to  the  rank  of 
the  employe  performing  it.  If  it  is  one  pertaining  to  the  duty  the 
master  owes  to  his  servants,  he  is  responsible  to  them  for  the  man- 
ner of  its  performance.  The  converse  of  the  proposition  neces- 
sarily follows.  If  the  act  is  one  which  pertains  only  to  the  duty  of 
an  operative,  the  employe  performing  it  is  a  mere  servant,  and  the 
master,  although  liable  to  strangers,  is  not  liable  to  a  fellow  serv- 
ant, for  its  improper  performance."  *8 

Co.,  180  N.  Y.  373,  73  N.  E.  1,  70  L.  R.  A.  725;    Agresta  v.  Stevenson,  112 
App.  Div.  367,  98  N.  Y.  Supp.  594. 

*a  Crispin  v.  Babbitt,  81  N.  Y.  516,  37  Am.  Rep.  521.  And  see  McCosker  v. 
Railroad  Co.,  84  N.  Y.  77 ;  Slater  v.  Jewett,  85  N.  Y.  74,  39  Am.  Rep.  627 ; 
Brick  v.  Railroad  Co.,  98  N.  Y.  211 ;  Finnigan  v.  New  York  Contracting  Co., 
122  App.  Div.  712,  107  N.  Y.  Supp.  855 ;  Gallagher  v.  Newman,  190  N.  Y.  444, 
83  N.  E.  480,  16  L.  R.  A.  (N.  S.)  146;  Droge  v.  John  N.  Robins  Co.,  123  App. 
Div.  537,  108  N.  Y.  Supp.  457 ;  QTJINLAN  v.  LACKA WANNA  STEEL  CO.,  191 
N.  Y.  329,  84  N.  E.  73,  Cooley  Cas.  Persons  and  Domestic  Relations,  336 ;  Ozo- 
gar  v.  Pierce,  Butler  &  Pierce  Mfg.  Co.,  55  Misc.  Rep.  579,  105  N.  Y.  Supp.  1087 ; 
Castner  Electrolytic  Alkali  Co.  v.  Davies,  154  Fed.  938,  83  C.  C.  A.  510.  See, 
also,  Chicago,  I.  &  L.  Ry.  Co.  v.  Barker,  169  Ind.  670,  83  N.  E.  369,  17  L. 
R.  A.  (N.  S.)  542,  14  Ann.  Cas.  375;  Tilley  v.  Rockingham  County  Light  & 
Power  Co.,  74  N.  H.  316,  67  Atl.  946;  Pagan  v.  Southern  Ry.,  78  S.  C.  413, 
59  S.  E,  32,  13  Ann.  Cas.  1105;  Rigsby  v.  Oil  Well  Supply  Co.,  115  Mo.  App. 
297,  91  S.  W.  460;  Doerr  v.  Daily  News  Pub.  Co.,  97  Minn.  248,  106  N.  W. 
1044;  Chesson  v.  Walker,  146  N.  C.  511,  60  S.  E.  422.  In  Missouri,  K.  &  T. 
Ry.  Co.  v.  Wise  (Tex.  Civ.  App.)  106  S.  W.  465,  it  was  held  that  employe's 
charged  with  the  duty  of  keeping  a  place  to  work  and  machinery  in  a 
safe  condition,  and  of  inspecting  the  same,  are  vice  principals  of  the  em- 
ployer, regardless  of  their  rank.  See,  also,  New  England  Telephone  &  Tele- 

TIFF.P.&  D.REL.(3D  ED.)— 40 


626  MASTER  AND  SERVANT  (Ch.  16 

This  doctrine  is  recognized,  with  some  variations,  in  most  states. 
All  the  courts  agree  to  so  much  of  the  doctrine  as  holds  that  a 
master  who  intrusts  a  personal  duty  to  a  servant  makes  that  serv- 
ant, pro  hac  vice,  a  vice  principal,  and  that  he  is  liable  to  the  other 
servants  for  his  negligence  in  the  performance  of  those  duties.44 

graph  Co.  v.  Butler,  156  Fed.  321,  84  C.  C.  A.  ?17;  Williamson  Iron  Co.  v. 
McQueen,  144  Ala.  265,  40  South.  306;  Koerner  v.  St.  Louis  Car  Co.,  209 
Mo.  141,  107  S.  W.  481,  17  L.  R.  4.  (N.  S.)  292.  Whether  employed  are 
fellow  servants  does  not  depend  on  the  rank  or  grade  of  the  negligent  serv- 
ant, but  on  the  nature  and  character  of  the  act  in  the  performance  of  which 
the  injury  occurred.  McKillop  v.  Superior  Shipbuilding  Co.,  143  Wis.  454, 
127  N.  W.  1053.  But  see  Cody  v.  Longyear,  103  Minn.  116,  114  N.  W.  735, 
where  it  was  held  that  if  a  vice  principal  orders  a  workman  into  a  place  of 
danger,  and  then,  without  warning,  starts  machinery  by  an  act  which  would 
have  been  performed  by  him  in  the  capacity  of  a  fellow  servant,  he  will  be 
held  to  have  acted  as  a  vice  principal  in  starting  the  machine,  as  well  as 
in  the  previous  act  which  placed  the  employe"  in  a  dangerous  situation. 

44  See  the  dictum  in  Baltimore  &  O.  R.  Co.  v.  Baugh,  149  U.  S.  368,  13 
Sv.p.  Ct.  914,  37  L.  Ed.  772.  See,  also,  Pressley  v.  Incorporated  Town  of 
Salliblaw.  54  Okl.  747,  154  Pac.  660,  and  the  cases  cited  hereafter  in  this 
note.  Employe's  intrusted  with  furnishing  safe  premises  and  machinery  and 
appliances  are  not  fellow  servants  with  those  who  use  them,  so  as  to 
exempt  the  master  from  liability  for  their  negligence;  but  in  respect  to 
this  duty  they  stand  in  the  place  of  the  master,  and  are  vice  principals. 
Lewis  v.  Seifert,  116  Pa.  628,  11  Atl.  514,  2  Am.  St.  Rep.  631 ;  Clegg  v.  Sea- 
hoard  Steel  Casting  Co.,  34  Pa.  Super.  Ct.  63;  Thurber  Brick  Co.  v.  Matth- 
ews (Tex.  Civ.  App.)  180  S.  W.  1189;  Bailey  v.  Swallow,  98  Minn.  104, 
107  N.  W.  727;  Bensing  v.  Steinway,  101  N.  Y.  547,  5  N.  E.  449;  Shanny 
v.  Androscojrgin  Mills,  66  Me.  420,  426;  McElligott  v.  Randolph,  61  Conn. 
157,  22  Atl.  1094,  29  Am.  St.  Rep.  181 ;  Brown  v.  Gil  Christ,  80  Mich.  56,  45 
N.  W.  82,  20  Am.  St.  Rep.  496;  Cadden  v.  American  Steel-Barge  Co.,  88 
Wis.  409,  60  N.  W.  800;  Lawless  v.  Railroad  Co.,  136  Mass.  1;  Houston  v. 
Brush,  66  Vt.  331,  29  Atl.  380;  Chicago,  B.  &  Q.  R.  Co.  v.  Avery,  109  111. 
315 ;  Nixon  v.  Lead  Co.,  102  Gal.  458,  36  Pac.  803 ;  Krueger  v.  Railway  Co., 
Ill  Ind.  51,  11  N.  E.  957.  Most  courts  apply  the  same  rule  to  employe's 
intrusted  with  repairs  of  premises  or  appliances.  Fuller  v.  Jewett,  80  N.  Y. 
46,  36  Am.  Rep.  575 :  Corcoran  v.  Holbrook,  59  N.  Y.  517,  17  Am.  Rep.  369 ; 
Shanny  v.  Androscoggin  Mills,  supra ;  Roux  v.  Lumber  Co..  94  Mich.  607,  54 
N.  W.  492;  Cincinnati,  H.  &  D.  R,  Co.  v.  McMullen.  117  Ind.  439,  20  N.  E. 
287,  10  Am.  St.  Rep.  67;  Northern  Pac.  R.  Co.  v.  Herbert,  116  U.  S.  642,  6 
Sup.  Ct.  590,  29  L.  Ed.  755;  Lewis  v.  Railroad  Co.,  59  Mo.  495,  21  Am.  Rep. 
385;  Tierney  v.  Railway  Co.,  33  Minn.  311,  23  N.  W.  229,  53  "Am.  Rep.  35; 
Cairo  v.  Railroad  Co.,  23  S.  C.  526,  55  Am.  Rep.  28;  Davis  v.  Railroad  Co., 
55  Vt.  84,  45  Am.  Rep.  590;  Moon's  Adm'r  v.  Railroad  Co.,  78  Va.  745,  49 
Am.  Rep.  401.  The  Massachusetts  court  holds  that  employes  intrusted  with 
ordinary  repairs  are  fellow  servants  of  the  employe's  who  use  the  premises 
or  appliances.  Johnson  v.  Towboat  Co.,  135  Mass.  211,  46  Am.  Rep.  458; 
McGee  v.  Cordage  Co.,  139  Mass.  445,  1  N.  E.  745;  Moynihan  v.  Hills  Co., 
146  Mass.  586,  16  N.  E.  574,  4  Am.  St.  Rep.  348;  Mellen  v.  Thomas  Wilson 
Sons  &  Co.,  159  Mass.  88,  34  N.  E,  96.  But  even  in  Massachusetts  the 
master  is  required  to  use  reasonable  care  and  supervision  to  see  that  repairs 


§§  272-275)      MASTER'S  LIABILITY  FOR  INJURIES  TO  SERVANT         627 

Most  courts  also  hold  that  if  the  duty  which  the  master  delegates 
to  a  servant  is  not  one  of  his  own  personal  duties,  but  a  duty  which, 

are  made  when  needed  by  those  to  whom  he  intrusts  the  duty.  Rogers  v. 
Manufacturing  Co.,  144  Mass.  204,  11  N.  E.  77,  59  Am.  Rep.  68;  Babcock  v. 
Railway  Co.,  150  Mass.  470,  23  N.  E.  325.  As  to  concurrent  negligence  of 
master  and  fellow  servant,  see  Union  Cotton  Mills  v.  Harris,  144  Ga.  716,  87 
S.  E.  1029;  Budde  v.  United  States  Incandescent  Lamp  Co.,  193  Mo.  App. 
154,  181  S.  W.  1034.  An  employe  to  whom  the  master  intrusts  the  duty  of 
determining  where  the  other  employes  are  to  work  is  a  vice  principal,  and 
not  their  fellow  servant  in  the  performance  of  this  duty,  and  the  master 
is  liable  to  the  other  servants  for  the  negligence  of  such  servant  in  not 
keeping  the  premises  in  a  safe  condition.  Cole  Bros.  v.  Wood,  11  Ind.  App. 
37,  36  N.  E.  1074.  So,  also,  it  is  held  in  some  states,  perhaps  in  most,  that 
the  duty  of  inspection,  like  that  of  repair,  is  one  which  the  master1  cannot 
delegate  so  as  to  be  exempt  from  liability  for  the  negligence  of  the  employe 
to  whom  he  intrusts  it;  and  that  an  inspector  of  premises,  machinery,  and: 
appliances  is  not  a  fellow  servant  with  those  who  use  them..  Northern  Pac. 
R.  Co.  v.  Herbert,  116  U.  S.  642,  6  Sup.  Ct.  590,  29  L.  Ed.  755 ;  Cincinnati,  H. 
&  D.  R.  Co.  v.  McMullen,  117  Ind.  439,  20  N.  E.  287,  10  Am.  St.  Rep.  67 ; 
Kiley  v.  Rutland  R.  Co.,  80  Vt.  536,  68  Atl.  713,  13  Ann.  Cas.  269;  Fay  v. 
Railway  Co.,  30  Minn.  231,  15  N.  W.  241;  Tierney  v.  Railway  Co.,  33  Minn. 
311,  23  N.  W.  229,  53  Am.  Rep.  35;  Macy  v.  Railroad  Co.,  35  Minn.  200,  28 
N.  W.  249.  Thus  in  Cincinnati  Traction  Co.  v.  Pierman,  4  Ohio  App.  8,  it 
was  held  that  an  inspector  for  a  street  railway  company  is  not  the  fellow 
servant  of  a  motorman.  In  other  states  it  is  held  that  a  master  performs 
his  duty  when  he  furnishes  a  competent  inspector,  and  that  the  negligence 
of  the  inspector  causing  injury  to  another  employe  is  the  negligence  of  a 
fellow  servant.  Mackin  v.  Boston  &  A.  R.  R.,  135  Mass.  201,  46  Am.  Rep. 
456 ;  Smith  v.  Potter,  46  Mich.  258,  9  N.  Wl  273,  41  Am.  Rep.  161 ;  Dewey 
v.  Detroit,  G.  H.  &  M.  Ry.  Co.,  97  Mich.  329.  52  N.  W.  942,  56  N.  W.  756,  16 
L.  R.  A.  342,  22  L.  R.  A.  292,  37  Am.  St.  Rep.  348.  But  even  when  the 
master  employs  an  inspector,  if  the  servants  are  to  test  the  machinery  be- 
fore using,  that  does  not  make  the  servant  an  inspector,  so  as  to  render  the 
master  liable  as  for  the  act  of  a  vice  principal,  when  the  servant  has  been 
negligent.  Fogarty  v.  Southern  Pac.  Co.,  151  Cal.  785,  91  Pac.  650.  An 
employ^  intrusted  with  the  duty  of  employing  competent  servants,  and  a 
sufficient  number  of  them,  is,  as  to  such  duty,  a  vice  principal,  and  not  a 
fellow  servant  of  the  other  employes.  I.aning  v.  Railroad  Co.,  49  N.  Y.  521, 
10  Am.  Rep.  417-;  Flike  v.  Railroad  Co.,  53  X.  Y.  549,  13  Am.  Rep.  545 ;  Core 
v.  Railroad  Co.,  38  W.  Va.  456,  18  S.  E.  596;  Cheeney  v.  Steamship  Co.,  92 
Ga.  726,  19  S.  E.  33,  44  Am.  St.  Rep.  113;  dictum  in  Quincy  Min.  Co.  v.  Kitts, 
42  Mich.  34,  3  N.  W.  240.  Thus,  where  an  engineer,  having  authority,  places 
an  inexperienced  and  incompetent  fireman  in  charge  of  an  engine,  the  com- 
pany is  liable  for  unavoidable  injuries  that  result  to  other  employes  by  such 
fireman's  unskillful  management  of  the  engine,  for  the  reason  that  it  is  a 
breach  of  the  duty  the  company  owes  to  its  employes  to  exercise  ordinary 
care  in  providing  and  retaining  competent  servants.  Core  v.  Railroad  Co., 
38  W.  Va.  456,  18  S.  E.  596.  The  duty  to  promulgate  necessary  and  proper 
rules,  as  to  promulgate  time-tables  of  a  railroad,  is  the  master's  duty;  and, 
if  he  delegates  it  to  a  servant,  the  latter  is  a  vice  principal  in  respect  to  such 
duty.  Slater  v.  Jewett,  85  N.  Y.  61,  39  Am.  Rep.  627;  Lewis  v.  Seifert,  116 


628  MASTER  AND  SERVANT  (Ch.  16 

may  be  so  delegated,  he  is  not  to  be  held  liable  to  his  other  serv- 
ants for  that  servant's  negligence  in  performing  it;  for  as  to  such 
a  duty  the  servant  is  to  be  regarded  as  their  fellow  servant,  what- 
ever may  have  been  his  relative  grade  or  rank.45  The  difficulty, 

Pa.  628,  11  Atl.  514,  2  Am.  St.  Rep.  631.  In  the  latter  case  the  employe  was 
a.  train  dispatcher,  vested  with  authority  to  change  the  schedule  time,  and 
make  new  time-tables;  and  he  was  held  a  vice  principal  as  to  train  hands. 
And  in  a  late  New  York  case  it  was  held  that  the  train  dispatcher  of  a  divi- 
sion, who,  in  directing  the  movements  of  two  trains,  which  are  being  run 
entirely  on  special  orders,  makes  a  mistake,  whereby  the  trains  collide,  is  a 
vice  principal  as  to  the  employes  on  the  trains.  Hankins  v.  Railroad  Co.,  142 
N.  Y.  416,  37  N.  E,  466.  25  L.  R.  A.  396,  40  Am.  St.  Rep.  616.  And  see  to  the 
same  effect,  Little  Rock  &  M.  R,  Co.  v.  Barry,  58  Ark.  198,  23  S.  W.  1097,  25 
L.  R.  A.  386;  Hunn  v.  Railroad  Co.,  78  Mich.  513,  44  N.  W.  502,  7  L.  R.  A. 
500 ;  Darrigan  v.  Railroad  Co.,  52  Conn.  285,  52  Am.  Rep.  590.  Contra,  Nor- 
folk &  W.  R,  Co.  v.  Hoover,  79  Md.  253,  29  Ati.  994,  25  L.  R.  A.  710,  47  Am. 
St.  Rep.  392;  Robertson  v.  Railroad  Co.,  78  Ind.  77,  41  Am.  Rep.  552.  So, 
too,  it  has  been  held  in  Choctaw,  O.  &  G.  R.  Co.  v.  Doughty,  77  Ark.  1,  91 
S.  W.  768,  that  a  train  dispatcher,  who  governs  the  movement  of  trains 
and  issues  running  orders,  and  the  conductor,  under  whose  direction  the 
train  is  actually  run,  are  not  fellow  servants  of  a  fireman  on  the  train. 

•»6  A  railroad  company  may  delegate  the  duty  of  running  its  trains,  and, 
under  the  doctrine  above  stated,  it  will  not  be  liable  to  a  brakeman  or  fireman, 
or  to  any  other  employ^  riding  or  working  on  a  train,  for  the  negligence 
of  the  conductor  or  engineer.  They  are  all  fellow  servants.  Slater  v. 
Jewett,  85  N.  Y.  61,  39  Am.  Ttep.  627 ;  Russell  xv.  RailroaU  Co.,  Tl  N.  Y.  134 ; 
Hayes  v.  Railroad  Corp.,  3  Cush.  (Mass.)  270;  Capper  v.  Railroad  Co.,  103 
Ind.  305,  2  N.  E.  749 ;  Thayer  v.  Railroad  Co.,  22  Iiid.  26,  85  Am.  Dec.  409 ; 
Evansville  &  R.  R.  Co.  v.  Henderson,  134  Ind.  636,  33  N.  E.  1021 ;  Ellington  v. 
Lumber  Co.,  93  Ga.  53, 19  S.  E.  21 ;  Howland  v.  Railway  Co.,  54  Wis.  226,  11  N. 
W.  529;  Smith  v.  Potter,  46  Mich.  258,  9  N.  W.  273,  41  Am.  Rep.  161; 
Nashville,  C.  &  St.  L.  R.  Co.  v.  Wheless,  10  l^ea  (Tenn.)  741,  43  Am.  Rep. 
317.  And  see  Baltimore  &  O.  R  Co.  v.  Baugh,  149  U.  S.  368,  13  Sup.  Ct. 
914,  37  L.  Ed.  772.  But  compare  this  case  with  Chicago,  M.  &  St.  P.  Ry. 
Co.  v.  Ross,  112  U.  S.  377,  5  Sup.  Ct  184,  28  L.  Ed.  787.  And  see  Atlantic 
Coast  Line  R.  Co.  v.  Beazley,  54  Fla.  311,  45  South.  761,  holding  that  a  con- 
ductor is  vice  principal  in  his  relation  to  a  brakeman  on  the  same  train, 
to  the  same  effect,  see  Southern  Indiana  Ry.  Co.  v.  Baker,  3.7  Ind.  App.  405, 
77  N.  E.  64;  Wilson  v.  Southern  Ry.,  73  S.  C.  481,  53  S.  E.  968.  See,  also, 
Nashville  C.  &  St.  L.  Ry.  v.  Kallock,  140  Tenn.  391,  204  S.  W.  1157,  holding 
that  a  boiler  maker  and  his  assistant  are  fellow  servants.  See,  however,  the 
following  cases  in  which  the  employe's  were  held  fellow  servants:  Mate 
and  common  sailor  upon  a  merchant  vessel,  Benson  v.  Goodwin,  147  Mass. 
237,  17  N.  E.  517 ;  foreman  or  other  superior  employe  and  laborer  under  him, 
Duffy  v.  Upton,  113  Mass.  544;  Moody  v.  Manufacturing  Co.,  159  Mass.  70, 
34  N.  E.  185,  88  Am.  St.  Rep.  396 ;  Gonsior  v.  Railway  Co.,  36  Minn.  385,  31 
N.  W.  515;  Olson  v.  Railway  Co.,  38  Minn.  117,  35  N.  W.  866;  Brown  v. 
Railroad  Co.,  27  Minn.  162,  6  N.  W.  484,  38  Am.  Rep.  285 ;  Morovick  v.  In- 
land Steel  Co.,  131  Minn.  53,  154  N.  W.  735;  Reid  v.  Medley's  Adm'r,  118 
Va.  402.  87  S.  E.  616;  Hanna  v.  Granger,  IS  R.  I.  507,  28  Att.  659;  Di  Mar- 


§§  272-275)     MASTER'S  LIABILITY  FOR  INJURIES  TO  SERVANT          629 

as  is  shown  by  the  illustrations  given  in  the  note,  is  in  determining, 
in  the  application  of  this  doctrine,  whether  the  duty  in  the  perform- 
ance of  which  the  servant  was  negligent  was  or  was  not  one  which 
the  master  could  delegate. 

If  the  master  intrusts  the  entire  conduct  and  control  of  his  busi- 
ness, or  a  part  of  it,  to  an  employe,  the  latter  stands  in  the  master's 
place,  and  is  not  to  be  regarded  as  a  fellow  servant  of  the  other  em- 
ployes. "Whenever  the  business  conducted  by  the  person  selected 
by  the  master  is  such  that  the  person  selected  is  invested  with  full 
control  (subject  to  no  one's  supervision,  except  the  master's)  over 
the  action  of  the  employes  engaged  in  carrying  on  a  particular 
branch  of  the  master's  business,  and,  acting  upon  his  own  discre- 
tion, according  to  general  instructions  laid  down  for  his  guidance, 
it  is  his  province  to  direct,  and  the  duty  of  the  employes  to  obey, 
then  he  stands  in  the  place  of  the  master,  and  is  not  a  fellow  servant 
with  those  whom  he  controls."  46  Such  an  employe,  it  has  been 
said,  is  not  a  servant  at  all,  but  an  agent. 

In  a  few  states  the  New  York  doctrine  is  not  recognized,  but,  on 
the  contrary,  the  rank  or  grade  of  the  negligent  servant,  and  "hot 
merely  the  scope  of  his  duties  and  nature  of  the  act  or  omission, 

cho  v.  Iron  Foundry,  18  R.  I.  514,  27  Atl.  328,  28  Atl.  661;  Lavvler  v.  Rail- 
road Co.,  62  Me.  463,  16  Am.  Rep.  492;  Stutz  v.  Armour,  84  Wis.  623,  54 
N.  W.  1000;  Hoth  v.  Peters,  55  Wis.  405,  13  N.  W.  219;  Johnson  .v.  Water 
Co.,  77  Wis.  51,  45  N.  W.  807;  Peschel  v.  Railway  Co.,  62  Wis.  338,  21  N. 
W.  269 ;  Dube  v.  City  of  Lewiston,  83  Me.  211,  22  Atl.  112 ;  Cullen  v.  Nor- 
ton, 126  N.  Y.  1,  26  N.  E.  905;  Keystone  Bridge  Co.  v.  Newberry,  96  Pa. 
246,  42  Am.  Rep.  543;  Peterson  v.  Mining  Co.,  50  Iowa,  674,  32  Am.  Rep. 
143;  Doerr  v.  Daily  News  Pub.  Co.,  97  Minn.  248,  106  N.  W.  1044;  American 
Bridge  Co.  v.  Seeds,  144  Fed.  605,  75  C.  C.  A.  407,  11  L.  R.  A.  (N.  S.)  1041 ; 
Westingbouse,  Church,  Kerr  &  Co.  v.  Callaghan,  155  Fed.  397,  83  C.  C.  A. 
669,  19  Lu  R,  A.  (N.  S.)  361.  That  a  negligent  servant  is  a  foreman  does 
not  change  the  fellow  servant  rule,  unless  he  is  at  the  time  representing  the 
master.  Gallant  v.  Great  Northern  Paper  Co.,  114  Me.  208,  95  Atl.  889. 

46  Hunn  v.  Railroad  Co.,  78  Mich.  513,  44  N.  W.  502,  7  L.  R.  A.  500.  And 
see  Corcoran  v.  Holbrook,  59  N.  Y.  517,  17  Am.  Rep.  369;  Sheehan  v.  Rail- 
road Co.,  91  N.  Y.  332 ;  Pantzar  v.  Mining  Co.,  99  N.  Y.  368,  2  N.  E.  24 ; 
Taylor  v.  Railway  Co.,  121  Ind.  124,  22  N.  E.  876,  6  L.  R.  A.  584,  16  Am.  St. 
Rep.  372;  Mitchell  v.  Robinson,  SO  Ind.  281,  41  Am.  Rep.  812;  Lewis  v. 
Seifert,  116  Pa.  628,  11  Atl.  514,  2  Am.  St.  Rep.  631;  Mullan  v.  Steamship 
Co.,  78  Pa.  25,  21  Am.  Rep.  2 ;  Chicago  Anderson  Pressed-Brick  Co.  v.  Sobko- 
wiak,  148  111.  573,  36  N.  E.  572 ;  Brothers  v.  Cartter,  52  Mo.  373,  14  Am.  Rep. 
424;  Dobbin  v.  Railroad  Co.,  81  N.  C.  446,  31  Am.  Rep.  512;  Hamann  v. 
Milwaukee  Bridge  Co.,  127  Wis.  550,  106  N.  W.  1081,  7  Ann.  Gas.  458 ;  Penn- 
sylvania R.  Co.  v.  Kartell,  157  Fed.  667,  85  C.  C.  A.  335 ;  Henrietta  Coal  Co. 
v.  Martin,  221  111.  460,  77  N.  E.  902,  affirming  122  111.  App.  354;  Moore  v. 
King  Mfg.  Co.,  124  Ga.  576,  53  S.  E.  107. 


630  MASTER  AND  SERVANT  (Ch.  16 

is  considered,  in  determining  his  character.  It  is  held  in  these 
states  that  if  one  servant  is  placed  in  control  of  the  others,  as  a 
foreman,  for  instance,  he  does  not  occupy  the  relation  of  their 
fellow  servant.  "No  service  is  common,"  said  the  Ohio  Court  in 
applying  this  doctrine,  "that  does  not  admit  a  common  participa- 
tion, and  no  servants  are  fellow  servants  when  one  is  placed  in  con- 
trol over  the  other."47  The  Supreme  Court  of  the  United  States 

47  Cleveland.  C.  &  C.  R.  Co.  v.  Keary,  3  Ohio  St.  201.  The  leading  case 
holding  this  doctrine  is  Little  Miami  R.  Co.  v.  Stevens,  20  Ohio,  415.  Berea 
Stone  Co.  v.  Kraft,  31  Ohio  St.  291,  27  Am.  Rep.  510;  Louisville  &  N.  R. 
Co.  v.  Collins,  2  Duv.  (Ky.)  114,  87  Am.  Dec.  486;  Newport  News  &  M.  Val. 
Co.  v.  Dentzel's  Adm'r,  91  Ky.  42,  14  S.  W.  958;  Miller  v.  Railway  Co., 
109  Mo.  350,  19  S.  W.  58,  32  Am.  St.  Rep.  673;  Illinois  Cent.  R.  Co.  v. 
Spence,  93  Tenn.  173,  33  S.  W.  211,  42  Am.  St.  Rep.  907;  Moon's  Adm'r 
v.  Railroad  Co.,  78  Va.  745,  49  Am.  Rep.  401;  Chicago,  St  P.,  M.  &  O.  Ry. 
Co.  v.  Lundstrom,  16  Neb.  254,  20  N.  W.  198,  49  Am.  Rep.  718.  And  see  Mad- 
den's  Adm'r  v.  Railway  Co.,  28  W.  Va.  610,  57  Am.  Rep.  695.  Thus,  accord- 
ing to  this  doctrine,  it  is  held  that  a  foreman  in  charge  of  hands  engaged  in 
a  particular  piece  of  work  is  not  their  fellow  servant  In  respect  to  such 
work.  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Lavalley,  36  Ohio  St.  221;  Miller  v. 
Railway  Co.,  109  Mo.  350,  19  S.  W.  58,  32  Am.  St.  Rep.  673;  Chicago,  St.  P., 
M.  &  O.  Ry.  Co.  v.  Lundstrom,  16  Neb.  254,  20  N.  W.  198,  49  Am.  Rep.  718.  And 
it  is  held  that  a  conductor  having  control  of  a  train  is  not  a  fellow  servant  of 
the  brakeman,  fireman,  or  engineer.  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Spangler, 
44  Ohio  St.  471,  8  N.  E.  467,  58  Am.  Rep.  833;  Little  Miami  R.  Co.  v. 
Stevens,  20  Ohio,  415;  Cleveland,  C.  &  C.  R.  Co.  v.  Keary,  3  Ohio  St.  201; 
Haney  v.  Railway  Co.,  38  W.  Va.  570.  18  S.  E.  748;  Newport  News  &  M. 
Val.  Co.  v.  Dentzel's  Adm'r,  91  Ky.  42,  14  S.  W.  958;  Moon's  Adm'r  v.  Rail- 
road Co.,  78  Va.  745.  49  Am.  Rep.  401 ;  Miller  v.  Railway  Co.,  109  Mo.  350, 
19  S.  W.  58,  32  Am.  St  Rep.  673;  Illinois  Cent.  R.  Co.  v.  Spence,  93  Tenn. 
173,  23  S.  W.  211,  42  Am.  St.  Rep.  907 ;  Atlantic  Coast  Line  R.  Co.  v.  Beazley, 
54  Fla.  311,  45  South.  761.  An  engineer  is  vice  principal,  and  not  fellow 
servant,  of  his  fireman.  Pagan  v.  Southern  Ry.,  78  S.  C.  413,  59  S.  E.  32,  13 
Ann.  Cas.  1105.  The  fact  that  the  foreman  or  superintendent  sometimes  acts 
in  the  capacity  of  a  colaborer  does  not  affect  his  status  as  a  vice  principal. 
Chicago  Anderson  Pressed  Brick  Co.  v.  Sobkowiak,  148  111.  573,  36  N.  E.  572 ; 
Chicago  &  E.  I.  R.  Co.  v.  Kimmel,  221  111.  547,  77  N.  E.  936 ;  MARQUETTE 
CEMENT  MFG.  CO.  v.  WILLIAMS,  230  111.  26,  82  N.  E.  424 ;  Cooley  Cas.  Per- 
sons and  Domestic  Relations,  335 ;  Hollweg  v.  Bell  Telephone  Co.,  195  Mo.  149, 
93  S.  W.  262.  But  see  Whiters  v.  MJallory  S.  S.  Co.,  23  Ga.  App.  47,  97  S.  E. 
453,  holding  that,  when  a  vice  principal  enters  upon  duties  relating  solely 
tp  the  work  of  a  servant,  he  becomes  a  fellow  servant.  On  the  other  hand, 
where  the  master  places  a  servant  under  the  command  of  another  servant 
of  the  same  grade,  such  other  servant  is  a  vice  principal.  American  Car  & 
Foundry  Co.  v.  Adams,  178  Ind.  607,  97  N.  E.  993.  So  where  a  general  fore- 
man told  a  servant  to  do  what  another  sen-ant  should  tell  him  to  do,  and 
then  told  such  other  sen-ant  to  tell  plaintiff  what  to  do,  such  servant  be- 
came a  vice  principal.  Bradshaw  v.  Standard  Oil  Co.,  199  Mo.  App.  688, 
204  S.  W.  831.  And  see  Day  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  284  111.  534,  120 
N.  E.  480.  affirming  208  111.  App.  351. 


§§  272-275)     MASTER'S  LIABILITY  FOR  INJURIES  TO  SERVANT          631 

seems  to  have  laid  down  this  doctrine,  in  the  Ross  Case,  decided  in 
1884,  and  its  decision  was  so  construed  by  the  other  courts ; 48  but 
in  the  Baugh  Case,  decided  in  1893,  the  contrary  doctrine  was  rec- 
ognized and  affirmed.49 

In  England,  and  in  most  of  the  states  in  this  country,  servants 
of  the  same  master,  engaged  in  carrying  forward  the  same  common 
enterprise,  are  regarded  as  fellow  servants,  within  the  meaning  of 
the  general  rule,  although  they  may  be  in  different  and  widely- 
separated  departments.  The  rule  "is  not  confined  to  the  case  of 
two  servants  working  in  company,  or  having  opportunity  to  con- 
trol or  influence  the  conduct  of  each  other,  but  extends  to  every  case 
in  which  the  two,  deriving  their  authority  and  their  compensation 
from  the  same  source,  are  engaged  in  the  same  business,  though 
in  different  departments  of  duty."  50  In  Illinois,  and  several  of  tne 

«  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Ross,  112  U.  S.  377,  5  Sup.  Ct.  184,  28 
L.  Ed.  787.  In  this  case,  approving  the  Ohio  and  Kentucky  decisions,  it  was 
held  that  the  conductor  and  engineer  of  a  railroad  train  were  not  fellow 
servants.  Mr.  Justice  Field  delivered  the  opinion  in  this  case.  Mr.  Justice 
Bradley.  Mr.  Justice  Matthews,  Mr.  Justice  Gray,  and  Mr.  Justice  Blatchford 
dissented. 

49  Baltimore  &  O.  R.  Co.  v.  Baugh,  149  U.  S.  368,  13  Sup.  Ct  914,  37  L. 
Ed.  772.  In  this  case  it  was  held,  purporting  to  distinguish  the  Ross  Case, 
supra,  that  the  engineer  and  fireman  of  a  train  were  fellow  servants,  though 
the  rules  of  the  company  declared  that  the  engineer,  under  the  circumstances 
should  also  be  regarded  as  a  conductor.  Mr.  Justice  Brewer  delivered  the 
opinion  in  this  case.  Mr.  Chief  Justice  Fuller  and  Mr.  Justice  Field  dis- 
sented. 

6°Holden  v.  Fitchburg  R.  Co.,  129  Mass.  268,  37  Am.  Rep.  343;  Farwell 
v.  Boston  &  W.  R.  Corp.,  4  Mete.  (Mass.)  49,  38  Am.  Dec.  339;  Adams  v. 
Iron  Cliffs  Co.,  78  Mich.  288,  44  N.  W.  270,  18  Am.  St.  Rep.  441;  Falla  v. 
Pine  Mountain  Granite  Co.,  22  Ga.  App.  651,  97  S.  E.  114;  Lawler  v.  An- 
droscoggin  R.  Co.,  62  Me.  468,  16  Am.  Rep.  492 ;  Doughty  v.  Penobscot  Log 
Driving  Co.,  76  Me.  145 ;  Rose  v.  Boston  &  A.  R.  Co.,  58  N.  Y.  217 ;  Jenkins 
v.  Richmond  &  D.  R.  Co.,  39  S.  C.  507,  18  S.  E.  182,  39  Am  St.  Rep.  750; 
Neal  v.  Northern  Pac.  R.  Co.,  57  Minn.  365,  59  N.  W.  312;  Westinghouse, 
Church,  Kerr  &  Co.  v.  Callagban,  155  Fed.  397,  83  C.  C.  A.  669,  19  L.  R.  A. 
(N.  S.)  361 ;  Vilter  Mfg.  Co.  v.  Otte,  157  Fed.  230,  84  C.  C.  A.  673 ;  Johnson 
v.  Boston  &  M.  R.  R,,  78  Vt.  344,  62  Atl.  1021,  4  L.  R.  A.  (X.  S.)  856;  Southern 
Ry.  Co.  v.  Smith,  107  Va.  553,  59  S.  E.  372;  Wabash  R.  Co.  v.  Hassett,  170 
Ind.  370,  83  N.  E.  705;  Chicago,  I.  &  L.  Ry.  Co.  v.  Barker,  169  Ind.  670,  83 
N.  E,  369,  17  L.  R.  A.  (N.  S.)  542,  14  Ann.  Gas.  375 ;  Church  v.  Winchester 
Repeating  Arms  Co.,  78  Conn.  720,  63  Atl.  510;  Kenefick-Hammond  Co.  v. 
Rohr,  77  Ark.  290,  91  S.  W.  179 ;  Missouri,  K.  &  T.  Ry.  Co.  v.  Hendricks,  49 
Tex.  Civ.  App.  314,  308  S.  W.  745.  Accordingly  it  has  been  held  that  the 
following  employe's  are  fellow  servants:  Locomotive  engineer  or  conductor 
and  switchman,  Farwell  v.  Boston  &  W.  R.  Corp.,  4  Mete.  (Mass.)  49,  38  Am. 
Dec.  339;  engineer  and  brakeman,  Southern  Ry.  Co.  v.  Elliott,  170  Ind.  273, 
82  N.  E.  1051 ;  engineer  and  fireman,  Healy  v.  Buffalo,  R.  &  P.  Ry.  Co.,  Ill 


632  MASTER  AND  SERVANT  (Ch.  16 

other  states,  the  rule  is  different;  and  servants  employed  by  the 
same  master,  and  in  the  same  general  enterprise,  are  not  regarded 
as  being  fellow  servants,  within  the  rule  exempting  the  master, 
unless  their  duties  are  such  as  to  bring  them  into  personal  asso- 
ciation, or  unless  they  are  actually  co-operating  at  the  time  of  the 
injury.  If  they  are  in  entirely  separate  and  distinct  departments, 
the  courts  of  these  states  apply  the  doctrine  of  respondeat  superior, 
and  hold  the  master  liable.51 


App.  Div.  618,  97  N.  T.  Supp.  801 ;  engineer  and  locomotive  cleaner,  Sage  v. 
Baltimore  &  O.  R.  Co.,  219  Pa.  129,  67  Atl.  985;  workmen  in  repair  shop 
of  railroad,  who  are  being  carried  on  a  train,  and  a  flagman  or  switchman, 
Gilman  v.  Railroad  Corp.,  10  Allen  (Mass.)  233,  87  Am.  Dec.  635;  laborers 
ou  railroad  tracks  or  bridges  and  engineers  or  conductors  of  train,  whether 
the  former  are  injured  while  being  carried  on  the  train,  or  while  at  work  on 
the  road  or  bridge,  Seaver  v.  Railroad  Co.,  14  Gray  (Mass.)  466;  Dick  v. 
Railroad  Co.,  38  Ohio  St.  389 ;  Russell  v.  Railroad  Co.,  17  N.  Y.  134 ;  Evans- 
ville  &  R.  R.  Co.  v.  Henderson,  134  Ind.  636,  33  N.  E.  1021 ;  Schaible  v.  Rail- 
way Co.,  97  Mich.  318,  56  N.  Wv  565,  21  L.  R.  A.  660;  founder  in  a  blast 
furnace,  having  charge  of  the  inside  work  of  the  furnace,  and  the  engineer 
of  a  locomotive  used  by  the  same  company  in  moving  cars  on  its  premises, 
Adams  v.  Iron  Cliffs  Co.,  78  Mich.  288,  44  N.  W.  270,  18  Am.  St.  Rep.  441; 
brakeman  and  car  inspector,  the  latter  being  injured  by  the  negligence  of 
the  former,  Potter  v.  New  York,  etc.,  R.  Co.,  136  N.  Y.  77,  32  N.  E.  603.  As  to 
the  rule  where  the  inspector  is  negligent,  see  ante,  p.  624,  note  39.  Brake- 
man and  men  who  make  up  trains,  Thyng  v.  Railroad  Co.,  156  Mass.  16, 
30  N.  E.  169,  32  Am.  St.  Rep.  425.  Brakeman  and  switching  crew,  Sonsmith 
v.  Pere  Marquette  R.  Co.,  173  Mich.  57,  138  N.  W.  347.  Injured  employ^ 
and  blacksmith  who  dressed  defective  tools.  Wochner  v.  Pennsylvania  En- 
gineering Works,  251  Pa.  188,  96  Atl.  471.  Engineer  in  charge  of  engine 
operating  tram  cars  and  employs  engaged  in  inspecting  and  keeping  tram- 
way in  repair  are  fellow  servants.  Larson  v.  Kieburtz,  71  Wash.  231,  128 
Pac.  216. 

si  Chicago  &  N.  W.  R.  Co.  v.  Moranda,  93  111.  302,  34  Am.  Rep.  168  (collect- 
ing tzhe  Illinois  cases,  and  reviewing  the  doctrine) ;  Union  Pac.  Ry.  Co.  v. 
Erickson,  41  Neb.  1,  59  N.  W.  347,  29  L.  R.  A.  137 ;  Peoria,  D.  &  E.  Ry.  Co.  v. 
Rice,  144  111.  227,  33  N.  E.  951 ;  Louisville,  E.  &  St.  L.  Consol.  R.  Co.  v.  Haw- 
thorn, 147  111.  226,  35  N.  E.  534;  Bertelsen  v.  Rock  Island  Plow  Co.,  164  111. 
App.  459;  Irwin  v.  F.  P.  Gould  &  Son,  99  Neb.  283,  156  N.  W.  503;  Schlereth 
v.  Railway  Co.,  115  Mo.  87,  21  S.  W.  1110;  Card  v.  Eddy  (Mo.)  24  S.  W.  746; 
Moon's  Adm'r  v.  Railroad  Co.,  78  Va.  745,  49  Am.  Rep.  401 ;  Madden's  Adm'r 
v.  Railway  Co.,  28  W.  Va.  610,  57  Am.  Rep.  695 ;  St.  Louis  &  S.  F.  Ry.  Co.  v. 
Weaver,  35  Kan.  412,  11  Pac.  408,  57  Am.  Rep.  176 ;  Kane  v.  Erie  R.  Co.,  142 
Fed.  682,  73  C.  C.  A.  672;  Lanning  v.  Chicago  Great  Western  Ry.  Co..  196  Mo. 
647.  04  S.  W.  491 ;  LOUISVILLE  &  N.  R.  CO.  v.  BROWN,  127  Ky.  732,  106  S. 
W.  795,  32  Ky.  Law  Rep.  552, 13  L.  R.  A.  (N.  S.)  1135,  Cooley  Cas.  Persons  and 
Domestic  Relations,  331 ;  Illinois  Cent.  R.  Co.  v.  Tandy,  107  S.  W.  715,  32  Ky. 
Law  Rep.  962 ;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Dupree,  84  Ark.  377,  105  S.  W. 
878, 120  Am.  St.  Rep.  74 ;  Texas  &  P.  Ry.  Co.  v.  Nichols,  41  Tex.  Civ.  App.  119, 
92  S.  W.  411 ;  Houston  &  T.  C.  R.  Co.  v.  Turner,  99  Tex.  547,  91  S.  W.  562.  Mo- 


§§  272-275)      MASTER'S  LIABILITY  FOE  INJURIES  TO  SERVANT         633 

Employers'  Liability  Acts 

Statutes  known  as  "Employers'  Liability  Acts,"  defining  the  lia- 
bility of  the  master  for  injuries  to  a  servant,  have  been  enacted  by 
Congress  and  by  the  Legislatures  of  a  number  of  states.52  In  some 
instances  these  statutes  are  merely  declaratory  of  the  common 
law,53  but  in  others  they  establish  rules  differing  in  many  respects 
from  the  rules  laid  down  by  the  courts  in  the  absence  of  statute.54 

torman  is  not  fellow  servant  of  one  repairing  trolley  wires.  Mansfield  Ry. 
Light  &  Power  Co.  v.  Barr,  2  Ohio  App.  367.  Fallers  in  a  logging  camp  are 
not  fellow  servants  of  members  of  the  crew  hauling  logs  from  the  woods, 
where  they  are  left  by  the  fallers.  Cunningham  v.  Adna  Mill.  Co.,  71  Wash. 
Ill,  127  Pac.  850.  Assistant  millwrights,  sent  by  employer's  head  millwright 
to  repair  a  ,belt  furnishing  power  to  the  machine  where  plaintiff  is  working, 
are  not  his  fellow  servants.  Courtois  v.  King  Paper  Co.,  172  Mich.  305,  137  N. 
W.  699.  In  some  of  these  cases  the  theory  is  definitely  stated  that  only  those 
are  fellow  servants  who  are  directly  co-operating  with  each  other  and  who 
are  in  habitual  association,  so  that  they  may  observe  and  influence  each  oth- 
er's conduct  and  exercise  a  mutual  influence  on  each  other  promotive  of  proper 
caution.  Chicago  &  N.  W.  E.  Co.  v.  Moranda,  93  111.  302,  34  Am.  Rep.  168; 
Lyons  v.  Ryerson,  242  111.  409,  90  N.  E.  288;  Kaminsky  v.  Chicago  Rys.  Co., 
286  111.  271,  121  N.  E.  596,  affirming  208  111.  App.  304 ;  Gathman  v.  City  of  Chi- 
cago, 127  111.  App.  150;  Illinois  Terminal  R.  Co.  v.  Chapin,  128  111.  App.  170, 
affirmed  Chaplin  v.  Illinois  Terminal  R.  Co.,  227  111.  166,  81  N.  E.  15 ;  Illinois 
Steel  Co.  v.  Ziemkowski,  220  111.  324,  77  N.  E.  190,  4  L.  R.  A.  (N.  S.)  1161 ;  Koer- 
ner  v.  St.  Louis  Car  Co.,  209  Me.  141,  107  S.  W.  481,  17  L.  R.  A.  (N.  S.)  292. 
Whether  servants  of  a  common  master  are  fellow  servants,  within  the  mean- 
ing of  the  law,  is  usually  a  question  of  fact ;  but  if  the  facts  are  not  in  dis- 
pute, and  reasonable  men  would  agree  as  to  the  conclusions  to  be  drawn  from 
the  admitted  facts,  the  question  whether  the  relation  of  fellow  servant  exists 
in  a  given  case  becomes  a  question  of  law.  Kamisky  v.  Chicago  Rys.  Co.,  286 
111.  596,  121  N.  E.  596,  affirming  208  111.  App.  304.  In  Linquist  v.  Hodges,  248 
111.  491,  94  N.  E.  94,  a  cement  worker  was  injured  by  the  negligence  of  a  brick- 
layer working  in  the  same  building.  It  was  held  that  the  first  branch  of  the 
rule — that  "they  must  be  directly  co-operating  with  each  other,"  etc. — was  not 
applicable,  and  the  employes  could  not  be  held  to  be  fellow  servants  as  a  mat- 
ter of  law  under  that  branch  of  the  rule.  It  was  also  held  that  whether  they 
were  fellow  servants  under  the  second  branch  of  the  rule — that  their  usual 
duties  brought  "them  into  habitual  association,  so  that  they  may  exercise  a 
mutual  influence  on  each  other  promotive  of  proper  caution" — was  a  question 
of  fact  for  the  jury. 

52  u.  S.  Comp.  St.  §  865)7  et  seq. ;   Rev.  Laws  Mass.  1902,  c.  106 ;   Laws  N. 
Y.  1902,  p.  1748,  c.  600;  Civ.  Code  Ala.  1907,  §  3910;  Burns'  Ann.  St.  Ind.  1901, 
§§    7083-7087 ;  Act  Pa.  June  10,  1907  (P.  L.  523) ;  Mills'  Ann.  St  Rev.    Supp. 

Colo.  1891-1905,  §§  1511a,  1511f  (Laws  1901,  p.  161,  c.  67). 

53  Cleveland,  C.,  C.  &  St.  L.  Ry.  Co.  v.  Scott,  29  Ind.  App.  519,  64  N.  E.  896. 
And  see  Hess  v.  Adamant  Mfg.  Co.,  66  Minn.  79,  68  N.  W.  774,  construing  Gen. 
Laws  Minn.  1895,  p.  390,  c.  173 ;  Congrave  v.  Southern  Pac.  R.  Co.,  88  Cal.  360, 
26  Pac.  175,  construing  Civ.  Code  Cal.  1906,  §  1970. 

54  Columbus  &  W.  Ry.  Co.  v.  Bradford,  86  Ala.  574,  6  South.  90.    The  Em- 


634  MASTER  AND   SERVANT  (Ch.  16 

In  Massachusetts,  a  superintendent  was  regarded  as  the  fellow 
servant  of  employes  under  him;  but  the  employer's  liability  act55 
makes  the  master  liable  for  injuries  due  to  the  negligence  of  a  su- 
perintendent.56 So,  too,  in  some  instances  the  master  is  made  lia- 
ble for  the  negligence  of  a  superior  employe  or  agent.57  As  a  gen- 
eral rule,  under  the  various  Employers'  Liability  Acts,  federal  and 
state,  the  servant  does  not  assume  the  risk  due  to  the  negligence 
of  the  employer,  extraordinary  risks  or  the  risk  of  negligence  of 
a  fellow  servant.58  The  federal  statute  relates  only  to  common 
carriers  engaged  in  interstate  commerce,  and  in  many  states  the 
statutes  relate  only  to  railroad  companies  and  their  employes.58 

ployers'  Liability  Act  takes  the  place  of  common-law  liability  when  applicable. 
Sumey  v.  Craig  Mountain  Lumber  Co.,  27  Idaho,  721,  152  Pac.  181.  But  in 
many  states  the  act  does  not  abolish  the  common-law  remedy.  Kleps  v.  Bris- 
tol Mfg.  Co.,  189  N.  Y.  516,  81  N.  E.  765,  12  L.  R.  A.  (X.  S.)  1038;  St.  Louis  & 
S.  F.  R.  Co.  v.  Little,  75  Kan.  716,  90  Pac.  447.  The  federal  Employers'  Lia- 
bility Act  (U.  S.  Comp.  St.  §§  8657-8665),  in  so  far  as  it  relates  to  intrastate 
carriers,  supersedes  the  common  law  and  state  legislation.  Michigan  C.  R. 
Co.  v.  Vreeland,  227  U.  S".  59,  33  Sup.  Ct.  193,  57  L.  Ed.  417,  Ann.  Cas.  1914C, 
176;  Rowlands  v.  Chicago  &  N.  W.  R.  Co.,  149  Wis.  51,  135  N.  W.  156,  Ann. 
Cas.  1916E,  714. 

BO  Laws  1887,  p.  899,  c.  270;  Rev.  Laws  1902,  c.  106. 

ee  See  Malcolm  v.  Fuller,  152  Mass.  160,  25  N.  E.  83;  Davis  v.  Railroad  Co., 
159  Mass.  532,  34  N.  E.  1070 ;  O'Brien  v.  Rideout,  161  Mass.  170,  36  N.  E.  792^ 

57  Evans  v.  Railway  Co.,  70  Miss.  527,  12  South.  581. 

ss  Sells  v.  Grand  Trunk  Ry.,  206  111.  App.  45;  Kustuvin  v.  Chicago  &  A.  R. 
Co.,  209  111.  App.  55,  affirmed  287  111.  306,  122  N.  E.  512 ;  Northern  Alabama  Ry. 
Co.  v.  Harper,  201  Ala.  679,  79  South.  251 ;  Graves  v.  Union  Oil  Co.,  36  Cal. 
App.  766,  173  Pac.  618;  Wood  v.  Danas,  230  Mass.  587,  120  N.  E.  159 ;  Dickin- 
son v.  Cranberry  (Okl.)  174  Pac.  776.  The  federal  Employers'  Liability  Act 
(U.  S.  Comp.  St.  §§  8657-8665)  does  not  abolish  the  common-law  rule  as  to  the 
assumption  of  ordinary  risks  of  employment.  King  v.  Norfolk  S.  R.  Co.,  176 
N.  C.  301,  97  S.  E.  29,  certiorari  denied  Norfolk  &  S.  R.  Co.  v.  King,  249  U. 
S.  599,  39  Sup.  Ct.  257,  63  L.  Ed.  795.  Under  the  federal  act  there  must  be 
negligence  to  warrant  a  recovery.  Louisville  &  N.  R.  Co.  v.  Kemp,  140  Ga. 
657,  79  S.  E.  558;  Neil  v.  Idaho  &  W.  N.  R.  Co.,  22  Idaho,  74,  125  Pac.  331. 
A  violation  of  the  Employers'  Liability  Act  is  negligence  per  se.  Camenzind 
v.  Freeland  Furniture  Co.,  89  Or.  158,  174  Pac.  139. 

5»  See,  for  example,  Rev.  St.  Mo.  1899,  §  2873  (Ann.  St.  1906,  p.  1655);  Bates' 
Ann.  St.  Ohio,  §  3365—22 ;  Code  Iowa  1897,  §  2071 ;  Rev.  Laws  Minn.  1905,  § 
2042 :  Laws  N.  Y.  1906.  p.  1682,  c.  657;  Const.  Okl.  art.  9,  §  36.  See,  also,  Phil- 
adelphia &  Reading  Coal  &  Iron  Co.  v.  Oravage,  229  Fed.  383,  143  C.  C.  A. 
503  (construing  the  Pennsylvania  act);  Basham  v.  Chicago  &  G.  W.  Ry.  Co., 
178  Iowa.  998,  154  N.  W.  1019.  157  N.  W.  192:  Hunter  v.  Ingram-Day  Lumber 
Co.,  110  Miss.  744,  70  South.  901;  Lusk  v.  Phelps  (Okl.)  175  Pac.  756.  As  to 
the  federal  Employers*  Liability  Act  (U.  S.  Comp.  St.  §§  8657-8665),  see  Balti- 
more &  O.  R.  Co.  v.  Branson,  242  U.  S.  623,  37  Sup.  Ct.  244,  61  L.  Ed.  534,  re- 
versing 128  Md.  678,  98  Atl.  225;  Anest  v.  Columbia  &  P.  S.  R.  Co.,  89  Wash. 


§§  272-275)      MASTER'S  LIABILITY  FOR  INJURIES  TO  SERVANT         635 

Whenever  the  question  has  been  directly  presented,  the  constitu- 
tionality of  these  statutes  has  been  upheld.60 

Workmen's  Compensation  Acts 

In  a  large  number  of  states  statutes,  known  as  Workmen's  Com- 
pensation Acts,  have  been  passed,  which  materially  affect  the  lia- 
bility of  masters  for  injuries  to  their  employes,  arising  out  of  or  in 
the  course  of  their  employment.61  The  common-law  theory  of  al- 
lowing recovery  for  the  servant's  injury  only  when  the  master  is 
negligent  is  superseded  by  these  acts,  under  which  compensation 
for  injury  or  death  does  not  rest  on  the  master's  negligence,  and 
is  not  defeated  by  the  servant's  contributory  negligence,  if  it  does 
not  amount  to  actual  misconduct.62  It  is  not  important  who  is  at 
fault,  or  whether  any  one  is,  as  the  right  to  compensation  is  not 
based  on  the  theory  of  tort.63 

The  Workmen's  Compensation  Acts  are  based  on  the  broad 
economic  theory  that  compensation  for  injury  to  or  death  of  the 
workman  is  properly  chargeable  as  part  of  the  cost  of  industrial 


609,  154  Pac.  1100.  The  Fellow  Servant  Act  (Pub.  Laws  1909,  No.  104)  applies 
to  employes  of  street  railroads.  Arends  v.  Grand  Rapids  Ry.  Co.,  172  Mich. 
448,  138  N.  W.  195. 

eo  Colorado  Mill  &  Elevator  Co.  v.  Mitchell,  26  Colo.  284,  58  Pac.  28;  In- 
dianapolis Union  Ry.  Co.  v.  Houlihan,  157  Ind.  494,  60  N.  E.  943,  54  L.  R.  A. 
787;  Powell  v.  Sherwood,  162  Mo.  605,  63  S.  W.  485;  Bucklew  v.  Central  Iowa 
R.  Co..  64  Iowa,  603,  21  N.  W.  103 ;  Erie  R.  Co.  v.  Kane,  155  Fed.  118,  83  C.  C. 
A.  564;  Schradin  v.  New  York  Cent.  &  H.  R.  R.  Co.  (Sup.)  108  N.  Y.  Supp.  428. 
Federal  Employers'  Liability  Act  (U.  S.  Comp.  St.  §§  8657-8665)  :  Mondou  v. 
New  York,  N.  H.  &  H.  R.  Co.,  223  U.  S.  1,  32  Sup.  Ct.  169,  56  L.  Ed.  327,  38  L. 
,R.  A.  (N.  S.)  44 ;  Philadelphia,  B.  &  W.  R.  Co.  v.  Schubert,  224  U.  S.  603,  32 
Sup.  Ct.  589,  56  L.  Ed.  911. 

61  The  first  Compensation  Act  enacted  in  the  United  States  was  the  New 
York  law  of  1910  (Laws  1910,  c.  674).    Laws  are  now  in  force  in  over  30  states 
and  territories.     In  Europe  similar  legislation  took  place  at  a  much  earlier 
date.    The  first  legislation  of  this  character  was  the  German  Compensation  Act 
of  1884.     Austria    followed  in  1887,  Norway  in  1894,  Finland  in  1895,    and 
Great  Britain  in  1897.     Workmen's  Compensation  Acts  are  now  in  force  in 
over  25  jurisdictions  outside  of  the  United  States. 

62  Phil  Holleubeck  Co.  v.  Hollenbach,  181  Ky.  262,  204  S.  W.  152 ;  American 
Ice  Co.  v.  Fitzhugh,  128  Md.  3S2,  97  Atl.  999,  Ann.  Gas.  1917D,  33. 

63  State  v.  District  Court  of  Hennepin  County,  139  Minn.  205,  166  N.  W.  185, 
3  A.  L.  R.  1347 ;  Doey  v.  Clarence  P.  Rowland  Co.,  224  N.  Y.  30,  120  N.  E.  53, 
affirming  182  App.  Div.  152,  169  N.  Y.  Supp.  645.    In  the  latter  case  it  is  said 
that  awards  under  the  act  are  not  made  on  the  theory  that  a  tort  has  been 
committed,  but  on  the  theory  that  the  statute  empowering  the  commission  to 
make  an  award  is  read  into  and  becomes  a  part  of  the  contract  of  employ- 
ment. 


G36  MASTER  AND  SERVANT  (Ch.  16 

activity  and  production.64  They  have  been  passed  in  response  i& 
a  widespread  public  opinion  that  the  common-law  action  to  re- 
cover damages  for  injuries  suffered  by  employes  from  accidents 
while  in  the  performance  of  their  duties  under  present  industrial 
conditions  is  in  most  cases  an  imperfect  and  inadequate  remedial 
instrumentality.88  They  are  the  outgrowth  of  the  social  and  eco- 
nomic theory  "that  the  industry  which  has  always  borne  the  burden 
of  depreciation  and  destruction  of  the  necessary  machinery  shall 
also  bear  the  burden  of  repairing  the  efficiency  of  the  human  ma- 
chines, without  which  the  industry  itself  could  not  exist."  ee  Their 
general  purpose  is  to  transfer  the  burdens  resulting  from  industrial 
accidents  from  the  individual  to  the  industry,  to  be  finally  distrib- 
uted on  society  as  a  whole,  by  compelling  the  industry,  through 
the  employer,  to  contribute  to  the  support  of  the  dependents  of 
the  injured  person.67  The  statutes  should  be  liberally  construed  to 
effect  their  purpose.68 

These  statutes  have  generally  been  held  to  be  a  proper  exercise  of 
the  police  power,"  and  is  not  open  to  objection  on  constitutional 
grounds.70 

«*  Wangler  Boiler  &  Sheet  Metal  Works  Co.  v.  Industrial  Commission,  287 
111.  118,  122  N.  E.  366 ;  Grand  Trunk  R.  Co.  v.  Knapp,  233  Fed.  950,  147  C.  C. 
A.  624. 

«o  Sayles  v.  Foley,  38  R.  I.  484,  96  Atl.  340. 

«o  Lewis  &  Clark  County  v.  Industrial  Accident  Board  of  Montana,  52  Mont. 
6, 155  Pac.  268,  L.  R.  A.  1916D,  628. 

«T  Scott's  Case,  117  Me.  436,  104  Atl.  794. 

«8  Scott's  Case,  117  Me.  436,  104  Atl.  794;  Lahoma  Oil  Co.  v.  State  Indus- 
trial Commission  (Okl.)  175  Pac.  836;  Karoly  v.  Industrial  Commission  (Colo.) 
176  Pac.  284 ;  Pater  v.  Superior  Steel  Co.,  263  Pa.  244,  106  Atl.  202 ;  Taglinette 
v.  Sydney  Worsted  Co.  (R.  I.)  105  Atl.  641;  Rish  v.  Iowa  Portland  Cement 
Co.  (Iowa)  170  N.  W.  532;  Holt  Lumber  Co.  v.  Industrial  Commission,  168 
Wis.  381,  170  N.  W.  366 ;  United  States  Fidelity  &  Guaranty  Co.  v.  WIckline, 
103  Neb.  21,  170  N.  W.  193,  6  A.  L.  R.  1267. 

«»  Sayles  v.  Foley,  38  R.  I.  484,  96  Atl.  340;  Hunter  v.  Coif  ax  Consol.  Coal 
Co.,  175  Iowa,  245,  154  N.  W.  1037,  157  N.  W.  145,  L.  R.  A,  1917D,  15,  Ann. 
Cas.  1917E,  803 ;  Evanhoff  v.  State  Industrial  Ace.  Commission,  78  Or.  503,  154 
Pac.  106 ;  Matthiessen  &  Hegeler  Zinc  Co.  v.  Industrial  Board,  284  111.  378,  120 
N.  E.  249. 

TO  New  York  Cent.  R.  Co.  v.  White,  243  U.  S.  188,  37  Sup.  Ct.  247,  61  L.  Ed. 
667,  L.  R.  A.  1917D,  1,  Ann.  Cas.  1917D,  629  (New  York  act) ;  Hawkins  v. 
Bleakly,  243  U.  S.  210,  37  Sup.  Ct.  255,  61  L.  Ed.  678,  Ann.  Cas.  1917D,  639 
(Iowa  act) ;  Mountain  Timber  Co.  v.  State  of  Washington,  243  U.  S.  219,  37 
Sup.  Ct.  260,  61  L.  Ed.  685,  Ann.  Cas.  1917D,  642  (Washington  act)  ;  Deibekis 
v.  Link-Belt  Co.,  261  111.  454,  104  N.  E.  211,  Ann.  Cas.  1915A,  41;  Shade  v.  Ash 
Grove  Lime  &  Portland  Cement  Co.,  93  Kan.  257,  144  Pac.  249 ;  State  ex  reh 
Topic  v.  Creamer,  85  Ohio  St  349,  97  N.  E.  602,  39  L.  R.  A.  (N.  S.)  694;  State 


§§  272-275)     MASTER'S  LIABILITY  FOB  INJURIES  TO  SERVANT       637 

Some  of  the  statutes  are  compulsory  in  form,  containing  pro- 
visions by  which  the  employer  and  employe  may  be  compelled  to 
submit  to  the  terms  of  the  statute.71  But  in  a  majority  of  the 
states  the  statutes  are  optional  in  form,  containing  provisions  under 
which  the  employer  and  the  employe  may  elect  to  come  in  under 
the  statute.72  Under  some  statutes  the  employer  or  employe  must 
affirmatively  reject  the  privilege  of  the  act  or  he  will  be  subject 
thereto  automatically.73  Contracts  waiving  or  limiting  the  right 
to  compensation  under  the  act  and  releases  from  liability  are  in- 
valid.7* 

ex  rel.  Davis-Smith  Co.  v.  Clausen,  65  Wash.  156,  117  Pac.  1101,  37  L.  R.  A. 
(N.  S.)  466;  Cunningham  v.  Northwestern  Improvement  Co.,  44  Mont.  180, 119 
Pae.  554 ;  Sayles  v.  Foley,  38  R.  I.  484,  96  Atl.  340 ;  Western  Indemnity  Co.  v. 
Pillsbury,  170  Cal.  686,  151  Pac.  398;  Borgnis  v.  Falk  Co.,  147  Wis.  327,  133  N. 
W.  209,  37  L.  R,  A.  (N.  S.)  489;  Mathison  v.  Minneapolis  Street  R.  Co.,  126 
Minn.  286,  148  N.  W.  71,  L.  R.  A.  1916D,  412 ;  Miller  &  Lux,  Inc.,  v.  Industrial 
Accident  Commission,  179  Cal.  764,  178  Pac.  960;  Day  v.  Louisiana  Central 
Lumber  Co.,  144  La.  820,  81  South.  .328;  State  v.  Postal  Telegraph  &  Cable  Co., 
101  Wash.  630,  172  Pac.  902 ;  Greene  v.  Caldwell,  170  Ky.  571,  186  S.  W.  648, 
Ann.  Cas.  1918B,  604;  Friedman  Mfg.  Co.  v.  Industrial  Commission  (111.)  120 
Is.  E.  460:  Duart  v.  Simmons,  231  Mass.  313,  121  N.  E.  10;  Zancanelli  v.  Cen- 
tral Coal  &  Coke  Co.,  25  Wyo.  511,  173  Pac.  981;  Middleton  v.  Texas  Power  & 
Light  Co.,  249  TJ.  S.  152,  39  Sup.  Ct.  227,  63  L.  Ed.  527  (Texas  statute)  ;  Watts 
v.  Ohio  Valley  Electric  Ry.  Co.,  78  W.  Va.  144,  88  S.  E.  659. 

7 1  The  statutes  are  compulsory  in  form  either  as  to  all  occupations  or  as  to 
some  of  them  in  the  following  states :  Arizona,  California,  Hawaii,  Maryland, 
New  York,  North  Dakota,  Ohio,  Oklahoma,  Utah,  Washington,  and  Wyoming. 
As  to  the  Arizona  act,  see  Consolidated  Arizona  Smelting  Co.  v.  Ujack,  15  Ariz. 
382,  139  Pac.  465 ;   California  act,  see  Western  Indemnity  Co.  v.  Pillsbury,  170 
Cal.  686,  151  Pac.  398 ;    Ohio  act,  see  State  v.  Industrial  Commission,  92  Ohio 
St.  434,  111  N.  E.  299,  L.  R.  A.  1916D,  944,  Ann.  Cas.  1917D,  1162 ;    Utah  act, 
see  Industrial  Commission  v.  Daly  Mining  Co.  (Utah)  172  Pac.  301. 

72  The  statute  is  optional  in  form  in  Alaska,  Colorado,  Connecticut,  Illinois, 
Indiana,  Iowa,  Kansas,  Kentucky,  Louisiana,  Maine,  Massachusetts,  Michi- 
gan,   Minnesota,  Montana,  Nebraska,    Nevada,  New  Hampshire,  New  Jersey, 
Oregon,   Pennsylvania,   Rhode  Island,  Texas,  Vermont,  West  Virginia,   and 
Wisconsin.     See,  also,  Appeal  of  Hotel  Bond  Co.,  89  Conn.  143,  93  Atl.  245; 
Mackin  v.  Detroit-Timkin  Axle  Co.,  187  Mich.  8,  153  N.  W.  49 ;   Scott  v.  Payne 
Bros.,  85  N.  J.  Law,  446,  89  Atl.  927.    An  employer  not  included  in  any  of  the 
classes  enumerated  in  the  act  may  by  operating  under  the  act  free  himself 
from  common-law  liabilities.    Wangler  Boiler  &  Sheet  Metal  Works  Co.  v.  In- 
dustrial Commission,  287  111.  118,  122  N.  E.  366. 

73  Rogers  v.  Illinois  Central  R.  Co.,  210  111.  App.  577;  Young  v.  Duncan,  218 
Mass.  346,  106  N.  E.  1 ;  Harris  v.  Hobart  Iron  Co.,  127  Minn.  399,  149  N.  W. 
662 ;  Dietz  v.  Big  Muddy  Coal  &  Iron  Co.,  263  111.  480,  105  N.  E.  289 ;   Gorrell 
v.  Bottelle,  93  Kan.  370,  144  Pac.  244. 

74  in  re  Cox,  225  Mass.  220,  114  N.  E.  281;  Chicago  Rys.  Co.  v.  Industrial 
Board,  276  111.  112,  114  N.  E.  534 ;  West  Jersey  Trust  Co.  v.  Philadelphia  &  R, 
R.  Co.,  87  N.  J.  Law,  102,  95  Atl.  753. 


638  MASTER  AND  SERVANT  (Ch.  16 

Same — Abrogation  of  Common-Law  Defenses 

Though  in  most  states  the  statutes  are  optional  in  form  and 
ostensibly  permit  the  employer  to  elect  whether  he  will  avail  him- 
self of  their  provisions  or  not,  an  element  of  coercion  is  introduced 
into  them  by  provisions  declaring  in  effect  that,  if  the  employer 
does  not  elect  to  come  in  under  the  act  or  if  he  rejects  it,  the  de- 
fenses of  contributory  negligence,  assumption  of  risk,  and  negli- 
gence of  fellow  servant  shall  not  be  available  to  the  employer." 
The  constitutionality  of  these  provisions  has  been  upheld  in  nu- 
merous cases.7" 

Same — Persons  to  Whom  the  Acts  are  Applicable 

As  injuries  to  employes  of  common  carriers  engaged  in  interstate 
commerce  are  covered  by  the  federal  Employers'  Liability  Act,77 
persons  thus  employed  do  not  come  within  the  protection  of  the 
Workmen's  Compensation  Acts.78  These  acts  do  not  as  a  rule  ap- 

76  Sadowski  v.  Thomas  Furnace  Co.,  157  Wis.  443,  146  N.  W.  770;  Pope  v. 
Heywood  Bros.  &  Wakefleld  Co.,  221  Mass.  143,  108  N.  E.  1058;  Watts  v.  Ohio 
Valley  Electric  Co.,  78  W.  Va.  144,  88  S.  E.  659;  National  Enameling  &  Stamp- 
ing Co.  v.  Padgett,  251  Fed.  30,  163  C.  C.  A.  280 ;  Spiehs  v.  Insull,  207  111.  App. 
256;  Bell  v.  Toluca  Coal  Co.,  272  111.  576,  112  N.  E.  311;  Bay  State  St.  Ry.  Co. 
v.  Rust,  253  Fed.  43,  165  C.  C.  A.  641  (Rhode  Island) ;  Gay  v.  Hocking  Coal 
Co.,  184  Iowa,  949,  169  N.  W.  360;  La  Point  v.  Monadnock  Paper  Mill,  79  N. 
H.  61,  104  Atl.  251;  Mitchell  v.  Swanwood  Coal  Co.,  182  Iowa,  1001,  166  N.  W. 
391;  Schlehuber  v.  American  Express  Co.,  230  Mass.  347,  119  N.  E.  828. 
Though  the  employer  who  rejects  the  act  is  precluded  from  pleading  contribu- 
tory negligence,  yet  he  is  exonerated  as  to  the  proportional  part  of  the  dam- 
ages corresponding  to  the  amount  of  negligence  of  the  employe1.  Day  v.  Chi- 
cago, M.  &  St.  P.  Ry.  Co.,  208  111.  App.  351,  affirmed  284  111.  534,  120  N.  E.  480. 

7 «  Hawkins  v.  Bleakly,  243  U.  S.  210,  37  Sup.  Ct.  255,  61  L.  Ed. -678,  Ann. 
Cas.  1917D,  637;  Watts  v.  Ohio  Valley  Electric  Co.,  78  W.  Va.  144,  88  S.  E. 
659;  Mathison  v.  Minneapolis  St.  Ry.  Co.,  126  Minn.  286,  148.N.  W.  71,  L.  R. 
A.  1916D,  412;  Hunter  v.  Colfax  Consolidated  Coal  Co.,  175  Iowa,  2451,  154  N. 
W.  1037,  157  N.  W.  145;  Appeal  of  Hotel  Bond  Co.,  89  Conn.  143,  93  Atl.  245; 
Borgnis  v.  Falk  Co.,  147  Wis.  327,  133  N.  W.  209,  37  L.  R.  A.  (N.  S.)  489.  The 
Legislature  has  power  to  modify  or  abolish  entirely,  by  the  Workmen's  Com- 
pensation Act,  the  rules  of  law  relating  to  contributory  negligence,  assump- 
tion of  risk,  and  negligence  of  fellow  servants.  Strom  v.  Postal  Telegraph- 
Cable  Co.,  271  111.  544,  111  N.  E.  555 ;  Mathison  v.  Minneapolis  Street  R.  Co., 
126  Minn.  286,  148  N.  W.  71,  L.  R,  A.  1916D,  412. 

T  T  Ante,  p.  633. 

TS  Erie  R.  Co.  v.  Winfield,  244  U.  S.  170,  37  Sup.  Ct.  556,  61  L.  Ed.  1057,  Ann. 
Cas.  1918B,  662 ;  Southern  Pacific  Co.  v.  Pillsbury,  170  Cal.  782,  151  Pac.  277, 
L,  R.  A,  1916E,  916;  Young  v.  Duncan,  218  Mass.  346,  106  N.  E.  1;  Connelly  v. 
Michigan  Cent.  R,  Co.,  207  111.  App.  25 ;  Thornton  v.  Grand  Trunk-Milwaukee 
Car  Ferry  Co.,  202  Mich.  609,  16S  N.  W.  410 ;  Flynn  v.  New  York  S.  &  W.  R. 
Co.,  91  N.  J.  Law,  693,  103  Atl.  1052  affirming  90  N.  J.  Law,  450,  101  Atl.  1034 ; 


§§  272-275)     MASTER'S  LIABILITY  FOE  INJURIES  TO  SERVANT       639 

ply  to  farm  laborers,79  nor  to  minors  employed  in  contravention  of 
the  laws  relating  to  child  labor.80  So,  too,  the  acts  provide  that 
they  shall  not  apply  to  persons  whose  employment  is  merely  of  a 
"casual"  nature.81 

Same — Injury  must  Arise  Out  of  and  in  the  Course  of  the  Employment 
Under  the  provisions  of  the  various  Workmen's  Compensation 
Acts,  compensation  is  payable  only  for  injuries  "arising  out  of  and 
in  the  course  of  the  employment."  82  The  terms  "arising  out  of" 
and  "in  the  course  of"  are  not  synonymous.83  The  words  "aris- 
ing out  of"  the  employment  relate  to  the  cause  or  source  of  the  in- 
jury, while  the  words  "in  the  course  of"  the  employment  have  refer- 
ence to  the  time,  place,  and  circumstances  of  the  injury.84  The 
terms  are  in  the  conjunctive  and  recovery  can  be  had  only  when 


Spokane  &  I.  E.  Ry.  Co.  v.  Wilson,  104  Wash.  171,  176  Pac.  34;  Matney  v. 
Bush,  102  Kan.  293,  169  Pac.  1150. 

7  9>Mullen  v.  Little,  186  App.  Div.  169,  173  N.  Y.  Supp.  578 ;  Miller  &  Lux, 
Inc.,  v.  Industrial  Accident  Commission,  179  Cal.  764,  178  Pac.  960;  State  v. 
District  Court  of  Watonwan  County,  140  Minn.  398,  168  N.  W.  130,  L.  R.  A. 
1918F,  198 ;  Kelley  v.  Haylock,  163  Wis.  326,  157  N.  W.  1094,  L.  R.  A.  1916E, 
626. 

so  Gutmann  v.  Anderson,  142  Minn.  141,  171  N.  W.  303;  Taglinette  v.  Sydney 
Worsted  Co.  (R.  I.)  105  Atl.  641.  Stetz  v.  F.  Mayer  Boot  &  Shoe  Co.,  163  Wis. 
151,  156  N.  W.  971,  Ann.  Gas.  1918B,  675;  Hetzel  v.  Wasson  Piston-Ring,  Co., 
89  N.  J.  Law,  201,  98  Atl.  306,  L.  R.  A.  1917D,  75 ;  Zurasky  v.  Handy  Cap  Co., 
210  111.  App.  254 ;  Secklich  v.  Harris-Emery  Co.,  184  Iowa,  1025,  169  N.  W.  325, 
327;  Kruczkowski  v.  Polonia  Publishing  Co.,  203  Mich.  211,  168  N.  W.  932; 
Acklin  Stamping  Co.  v.  Kutz,  98  Ohio  St.  61,  120  N.  E.  229 ;  Waterman  Lum- 
ber Co.  v.  Beatty  (Tex.  Civ.  App.)  204  S.  W.  448. 

si  See  Gaynor's  Case,  217  Mass.  86,  104  N.  E.  339,  L.  R.  A.  1916A,  36.°,  (hold- 
ing that  a  waiter  employed  by  a  caterer  to  serve  at  a  particular  banquet  is 
not  within  the  act).  A  carpenter  employed  to  make  slight  repairs  on  a  build- 
ing is  a  "casual"  employed  La  Grande  Laundry  Co.  v.  Pillsbury,  173  Cal.  777, 
161  Pac.  988.  A  workman  employed  to  repair  a  tractor  is  a  casual  employe. 
Maryland  Casualty  Co.  v.  Pillsbury,  172  Cal.  748,  158  Pac.  1031. 

82  See  the  various  statutes.  And  see  Bryant  v.  Fissell,  84  N.  J.  Law,  72, 
86  Atl.  458;  Pierce  v.  Boyer-Van  Kuran  Lumber  Co.,  99  Neb.  321,  156  N.  W. 
509 ;  Cennell  v.  Oscar  Daniels  Co.,  203  Mich.  781,  168  *N.  W.  1009 ;  Hoenig  v. 
Industrial  Commission,  159  Wis.  646,  150  N.  W.  996,  L.  R.  A.  1916A,  339.  But 
see  Stertz  v.  Industrial  Ins.  Commission,  91  Wash.  588,  158  Pac.  256,  Ann.  Cas. 
1918B,  354. 

ss  Phil  Hollenbach  Co.  v.  Hollenbach,  181  Ky.  262,  204  S.  W.  152;  Walther 
v.  American  Paper  Co.,  89  N.  <  J.  Law,  732,  98  Atl.  264 ;  State  ex  rel.  Duluth 
Brewing  Malting  Co.  v.  District  Court  of  St.  Louis  County,  129  Minn.  176,  151 
N.  W.  912. 

s*  Walther  v.»American  Paper  Co.,  89  N.  J.  Law,  732,  98  Atl.  264;  Phil  Hal- 
lenbach  Co.  v.  Hallenbach,  181  Ky.  262,  204  S.  W.  152. 


640  MASTER  AND  SERVANT  (Ch.  16 

the  injury  arises  "out  of"  and  at  the  same  time  "in  the  course  of" 
the  employment.85 

An  injury  "arising  out  of  and  in  course  of  the  employment"  must 
result  from  a  risk  reasonably  incidental  to  employment,  within  the 
period  of  employment,  at  a  place  where  the  employe  may  reason- 
ably be,  and  while  he  is  reasonably  fulfilling  the  duties  of  his  em- 
ployment, or  doing  something  incidental  to  it.88  While  it  is  true 
that,  in  order  to  be  compensable,  it  is  not  essential  that  the  injury 
should  occur  while  the  employe  is  on  the  premises  of  the  employ- 
er,87 yet  as  a  general  rule  the  acts  do  not  cover  injuries  received 
while  the  employe  is  on  his  way  to  work  or  injuries  received  after 
he  has  actually  quit  work  and  has  left  the  premises  on  his  way 
home.88  But  if,  while  on  his  way  to  or  from  work,  he  is  engaged  in 

«5  Bulley  v.  Moosbrugger,  88  N.  J.  Law,  161,  95  Atl.  1007,  L.  R.  A,  1916C, 
1203,  reversing  87  N.  J.  Law,  103,  93  Atl.  79.  State  ex  rel.  Duluth  Brewing 
&  Malting  Co.  v.  District  Court  of  St.  Louis  County,  129  Minn.  176,  151  N.  W. 
912. 

8«  N.  K.  Fairbank  Co.  v.  Industrial  Commission,  285  111.  11,  120  N.  E.  457; 
Pace  v.  Appanoose  County,  184  Iowa,  498,  168  N.  W.  916;  King  v.  State  Ins. 
Fund  (Sup.)  171  N.  Y.  Supp.  1032 :  Bryant  v.  Fissell,  84  N.  J.  Law,  72.  86  Atl. 
458.  Injuries  arising  out  of  employment  includes  injuries  to  servants  whose 
services  are  being  performed  about  the  premises  of  the  employer  and  at  places 
where  the  employer's  business  requires  their  presence,  and  subjects  them  to 
dangers  incident  to  the  business.  Great  Lakes  Dredge  &  Dock  Co.  v.  Totzke 
(Ind.  App.)  121  N.  E.  675.  The  employe"  is  in  course  of  employment,  though 
performing  some  labor  different  from  that  in  which  he  is  usually  employed. 
Hartz  v.  Hartford  Faience  Co.,  90  Conn.  539,  97  Atl.  1020.  It  is  not  esseniial 
that  the  employe  shall  be  actually  at  work  at  the  time  the  injury  was  received. 
Scott  v.  Payne  Bros.,  85  N.  J.  Law,  446,  89  Atl.  927.  Thus,  where  the  em- 
ploye" was  injured  while  seeking  shelter  from  a  storm,  he  could  recover. 
Moore  v.  Lehigh  Valley  R.  Co.,  169  App.  Div.  177,  154  N.  Y.  Supp.  620 ;  State 
ex  reL  People's  Coal  &  Ice  Co.  v.  District  Court  of  Ramsey  County,  129  Minn. 
502,  153  N.  W.  119,  L.  R.  A.  1916A,  344.  So,  where  a  workman,  in  lighting  a 
cigarette  or  pipe  during  working  hours,  accidentally  set  fire  to  inflammable 
material  about  his  person,  the  injury  arose  out  of  and  in  the  course  of  his  em- 
ployment. Whiting-Mead  Commercial  Co.  v.  Industrial  Accident  Commission, 
178  Cal.  505,  173  Pao  1105,  5  A,  L.  R.  1518;  Dzikowska  v.  Superior  Steel  Co., 
259  Pa.  578,  103  AtL  351,  L.  R.  A.  1918F,  888.  Where  an  employer  did  not  pro- 
vide proper  toilet  facilities  for  employe's  in  the  building  where  they  were  at 
work,  but  they  were  compelled  to  go  to  another  building  of  the  employer 
across  the  street,  an  injury  received  while  crossing  the  street  arose  out  of  and 
in  the  course  of  the  employment.  Zabriskie  v.  Erie  Railroad  Co.,  86  N.  J.  Law, 
266,  92  Atl.  385,  L.  R.  A.  1916A,  315. 

sr  Hills  v.  Blair,  182  Mich.  20,  148  N.  W.  243. 

»8  Erickson  v.  St.  Paul  City  Ry.,  141  Minn.  166,  169  N.  W.  532;  Pace  v.  Ap- 
panoose  County,  184  Iowa,  498,  168  N.  W.  916 ;  N.  K.  Fairbank  Co.  v.  Indus- 
trial Commission,  285  111.  11,  120  N.  E.  457;  Mclnery  v.  Buffalo  &  S.  R.  Corp., 


§§  272-275)     MASTER'S  LIABILITY  FOR  INJURIES  TO  SERVANT      641 

some  enterprise  incidental  to  his  work  for  the  employer,  an  in  jury- 
received  is  covered  by  the  act.89  So,  too,  if  he  is  being  transported 
to  or  from  work  on  the  invitation  of,  or  in  accordance  with  cus- 
tom established  by  the  employer,  an  injury  received  arises  out  of 
and  in  the  course  of  the  employment.90  Of  course,  if  the  employe  is 
traveling  under  the  orders  or  at  the  request  of  the  employer,  an 
injury  received  while  so  traveling  arises  out  of  and  in  the  course  of 
the  employment.91 

Same — Willful  Misconduct 

The  Compensation  Acts  provide  that  no  compensation  is  recov- 
erable for  injuries  due  to  the  willful  misconduct  of  the  employe. 
The  term  "willful  misconduct"  does  not  necessarily  include  negli- 
gence, though  gross.92  Even  the  violation  of  rules  and  orders  is 
not  always  willful  misconduct,  which  will  bar  compensation, 

225  N.  Y.  130,  121  N.  E.  806,  reversing  185  App.  Dlv.  899,  170  N.  Y.  Supp.  1096 ; 
De  Constantin  v.  Public  Service  Commission,  75  W.  Va.  32,  83  S.  E.  88,  L.  R. 
A.  1916A,  329;  Fumiciello's  Case,  219  Mass.  488,  107  N.  E.  349;  Guastelo  v. 
•Michigan  Central  R.  Co.,  194  Mich.  382,  160  N.  W.  484,  L.  R.  A.  1917D,  69; 
Hills  v.  Blair,  182  Mich.  20,  148  N.  W.  243.  Leaving  the  premises  to  procure 
or  eat  lunch  does  not  necessarily  bar  a  recovery.  Sussdine's  Case,  218  Mass. 
1,  105  N.  E.  433,  L.  R.  A.  1916A,  318.  But  compare  Hills  v.  Blair,  182  Mich. 
20,  148  N.  W.  243. 

8'9  Scully  v.  Industrial  Commission,  284  111.  567,  120  N.  E.  492 ;  Bachman  v. 
Waterman  (Ind.  App.)  121  N.  E.  8. 

s»  Littler  v.  Geo.  A.  Fuller  Co.,  223  N.  Y.  369,  119  N.  E.  554,  reversing  182 
App.  Div.  907,  168  N.  Y.  Supp.  1116.  Where  an  employe,  while  riding  in  a 
conveyance  of  his  employer  from  the  place  of  business  to  the  place  where  work 
was  to  be  done,  left  the  vehicle  to  enter  a  store  to  purchase  tobacco  for  his 
own  use,  and  was  struck  by  a  passing  automobile,  the  injury  did  not  arise 
out  of  or  in  course  of  his  employment.  In  re  Batts  (Ind.  App.)  118  N.  E.  551. 
An  employ^,  proceeding  from  shop  to  place  where  he  is  to  work  under  instruc- 
tions from  his  employer,  is  within  the  act.  City  of  Milwaukee  v.  Althoff,  156 
Wis.  68, 145  N.  W.  238,  L.  R.  A.  1916A,  327.  A  plumber,  injured  while  driving 
his  employer's  horse  and  wagon  from  the  job  io  the  shop,  may  recover.  In 
re  Sanderson,  224  Mass.  558,  113  N.  E,  355. 

91  Industrial  Commission  of  Colorado  v.  JEtna  Life  Ins.  Co.  (Colo.)  174  Pac. 
589,  3  L.  R.  A.  1336 ;  State  v.  District  Court  of  Hennepin  County,  141  Minn.  61. 
169  N.  W.  274 ;  Messer  v.  Manufacturers'  Light  &  Heat  Co.,  263  Pa.  5,  106  Atl. 
85 ;  In  re  Raynes  (Ind.  App.)  118  N.  E.  387.  And  see  Foley  v.  Home  Rubber 
Co.,  89  N.  J.  Law,  474,  99  Atl.  624,  where  the  employs  was  on  the  Lusitania 
when  it  was  sunk  by  a  German  submarine.  Where  an  engineer,  while  on  his 
vacation,  visited  a  pumping  station  in  another  town  at  the  request  of  his  em- 
ployer, for  the  purpose  of  observing  the  methods  of  operating  such  pumping 
station,  any  injury  received  while  on  such  journey  was  covered.  Messer  v. 
Manufacturers'  Light  &  Heat  Co.,  263  Pa.  5,  106  Atl.  85. 

02  Burns'  Case,  218  Mass.  8.  105  N.  E.  601.  Ann.  Cas.  1916A,  787;  Nickerson's 
Case,  218  Mass.  158,  105  N.  E.  604,  Ann.  Cas.  1916A,  790 ;  North  Pacific  S.  S. 
TIFF.P.&  D.REL.(3o  ED.)— 41 


642  MASTER  AND  SERVANT  (Ch.  16 

though  generally  speaking,  the  violation  of  rules  and  orders  espe- 
cially designed  to  secure  the  safety  of  the  employe  will  be  so  re- 
garded.98 And  so,  too,  the  violation  of  a  statute  has  been  held  to  Be 
willful  misconduct.8*  Intoxication  may  or  may  not  be  willful  mis- 
conduct, according  to  circumstances.96 


RIGHTS  OF  MASTER  AS  AGAINST  THIRD  PERSONS 

276.  The  master  may  recover  from  third  persons  for  any  damage 
he  may  have  suffered  by  reason  of  their  wrongful  inter- 
ference with  his  relationship  to  the  servant,  either  by  en- 
ticing the  servant  away,  abducting  or  harboring  him,  by 
inflicting  personal  injuries  upon  him,  or  falsely  imprison- 
ing him,  or  otherwise  depriving  the  master,  in  whole  or  in 
part,  of  his  services. 

Whenever  a  servant  is  knowingly  enticed  98  from  his  master's 
service,  the  master  may  maintain  an  action  of  trespass  on  the  case 
per  quod  servitium  amisit  against  the  enticer;  and  such  an  action 
will  also  lie  at  common  law  against  one  who  harbors  a  servant, 
knowing  that  he  has  wrongfully  left  his  master.  A  master  may 
also  maintain  an  action  against  one  who  willfully,  as  by  an  assault 

Co.  v.  Industrial  Accident  Commission,  174  Cal.  500,  163  Pac.  910 ;  Gignac  v. 
Studeoaker  Corp.,  186  Mich.  574,  152  N.  W.  1037. 

»3  Great  Western  Power  Co.  v.  Pillsbury,  170  Cal.  180,  149  Pac.  35;  Nicker- 
son's  Case,  218  Mass.  158,  105  N.-E.  604,  Ann.  Cas.  1916A,  790;  Peru  Basket 
Co.  v.  Kunlz  (Ind.  App.)  122  N.  E.  349. 

»*  Fidelity  &  Deposit  Co.  v.  Industrial  Commission,  171  Cal.  728,  154  Pac. 
834,  L.  R.  A.  1916D,  903. 

85  Intoxication,  which  does  not  Incapacitate  the  employe"  from  following  his 
occupation,  does  not  defeat  recovery  of  compensation,  though  it  may  be  a  con- 
tributing cause  of  the  injury.  Hahnemann  Hospital  v.  Industrial  Board,  282 
HI.  316,  118  N.  E.  767.  And  see  Nekoosa-Edwards  Paper  Co.  v.  Industrial 
Commission,  154  Wis.  105.  141  N.  W.  1013,  L.  R.  A.  1916A,  348,  Ann.  Cas. 
1915B,  995.  On  the  other  hand,  if  the  employe  is  intoxicated  to  such  an  ex- 
tent that  he  cannot  follow  his  work,  an  injury  then  received  is  not  in  the 
course  of  the  employment.  Lefens  v.  Industrial  Commission,  286  111.  32,  121 
N.  E.  182. 

»«  "It  is  a  material  and  necessary  allegation  that  the  defendant  knew,  at 
the  time  of  enticing,  employing,  or  harboring,  that  the  party  enticed  away, 
employed,  or  harbored  was  the  servant  of  the  plaintiff,  or  that  he  afterwards 
had  notice  thereof,  and  continued  to  employ  or  harbor  the  servant  after  such 
notice.  And  such  knowledge  or  notice  must  be  proved  in  order  to  support 
the  notion."  Butterfield  v.  Ashley,  6  Gush.  (Mass.)  249.  And  see  Caughey 
v.  Smith,  47  N.  Y.  244. 


§  276)  EIGHTS    OF   MASTER  AGAINST   THIRD  PERSON  643 

and  battery,  or  false  imprisonment,  or  negligently,  inflicts  personal 
injury  upon  his  servant,  resulting  in  loss  of  service  to  the  master, 
or  by  any  other  wrong  causes  such  loss  of  service.97 

It  has  been  said  that  this  doctrine  was  confined,  at  common  law, 
to  menial  or  domestic  servants  and  apprentices;  and  under  this 
view  it  has  been  held  that,  as  laborers  employed  by  a  man  to  work 
his  crops  for  a  share  therein  are  not  menial  servants,  the  master 
cannot  maintain  an  action  for  loss  of  service  against  one  who  in- 
jures such  an  employe.98  The  weight  of  authority,  however,  is 
against  this  view.  The  Massachusetts  court,  referring  to  the  mas- 
ter's right  of  action  for  enticing  away  his  servant,  said:  "It  has 
sometimes  been  supposed  that  this  doctrine  sprang  from  the  Eng- 
lish statute  of  laborers,  and  was  confined  to  menial  service.  But 
we  are  satisfied  that  it  is  founded  upon  the  legal  right  derived  from 

971  Jag.  Torts,  448.  Enticing  away  servant,  Keane  v.  Boycott,  2  H.  Bl. 
511 ;  Lumley  v.  Gye,  2  El.  &  Bl.  216 ;  Bixby  v.  Dunlap,  56  N.  H.  456,  22  Am. 
Rep.  475,  and  note  therein  at  pages  485-490 ;  Salter  v.  Howard,  43  Ga.  601 ; 
Walker  v.  Cronin,  107  Mass.  555;  Scidmore  v.  Smith,  13  Johns.  (N.  Y.)  322; 
Woodward  v.  Washburn,  3  Denio  (N.  Y.)  369;  Caughey  v.  Smith,  47  N.  Yr 
244;  Jones  v.  Blocker,  43  Ga.  331;  Raskins  v.  Royster,  70  N.  C.  601,  16  Am. 
Rep.  780 ;  Duckett  v.  Pool,  33  S.  C.  238,  11  S.  E.  689 ;  Milburne  v.  Byrne,  1 
Cranch,  C.  O.  239,  Fed.  Cas.  No.  9,542.  Abduction  of  servant,  Sherwood  v. 
Hall,  3  Sumn.  127,  Fed.  Cas.  No.  12,777;  Plummer  v.  Webb,  4  Mason,  380, 
Fed.  Cas.  No.  11,233.  Preventing  a  person  from  entering  the  service- ofv an- 
other by  menaces  and  threats  or  other  unlawful  means,  Walker  v.  Cronin, 
107  Mass.  555.  Harboring  another's  servant,  Blake  v.  Lanyon,  6  Term  R. 
221;  Sherwood  v.  Hall,  3  Sumn.  127,  Fed.  Cas.  No.  12,777;  Scidmore  v. 
Smith,  13  Johns.  (N.  Y.)  322.  But  in  Massachusetts  it  is  held  that  one  who 
does  nothing  to  entice  a  servant  to  leave  his  master's  employment  does  not 
become  liable  to  the  master  for  employing  him  after  he  has  left  of  his  own 
accord.  Butterfield  v.  Ashley,  6  Cush.  (Mass.)  249,  Id.  2  Gray  (Mass.)  254. 
Seduction  or  debauching  of  female  servant,  Edmondson  v.  Machell,  2  Term 
R.  4;  Moran  v.  Dawes,  4  Cow.  (N.  Y.)  412.  Willfully  or  negligently  causing 
personal  injury  to  servant,  Ames  v.  Railway  Co.,  117  Mass.  541,  19  Am.  Rep. 
426;  Fluker  v.  Banking  Co.,  81  Ga.  461,  8  S.  E.  529,  2  L.  R.  A.  843,  12  Am. 
St.  Rep.  328.  False  arrest  and  imprisonment  of  servant,  St.  Johnsbury  & 
L.  O.  R.  Co.  v.  Hunt,  55  Vt.  570,  45  Am.  Rep.  639 ;  Woodward  v.  Washburn, 
3  Denio  (N.  Y.)  369.  The  statute  of  frauds,  while  it  may  be  a  good  defense 
in  an  action  by  either  of  the  parties  on  a  verbal  contract  of  hiring  for  a 
longer  period  than  a  year,  is  no  defense  in  an  action  by  the  master  against  a 
third  person  for  enticing  away  the  servant.  Duckett  v.  Pool,  33  S.  C.  238,  11 
S.  E.  689.  Nor  is  the  infancy  of  the  servant  any  defense,  since  he  alone 
is  entitled  to  avoid  the  contract  on  that  ground.  Keane  v.  Boycott,  2  H.  Bl. 
511. 

as  Burgess  v.  Carpenter,  2  S.  C.  7,  16  Am.  Rep.  643 ;  Huff  v.  Watkins,  15 
S.  C.  82,  40  Am.  Rep.  680.  But  see  Daniel  v.  Swearengen,  6  S.  C.  297,  24  Am. 
Rep.  471. 


644  MASTER   AND   SERVANT  (Ch.  16 

the  contract,  and  not  merely  upon  the  relation  of  master  and  serv- 
ant, and  that  it  applies  to  all  contracts  of  employment."  ••  To  en- 
title a  master  to  recover  from  one  who  injures  or  entices  away  his 
servant,  it  is  sufficient  to  show  a  subsisting  relation  of  service,  even 
though  it  may  be  determinable  at  will.1  To  induce — but  not  mali- 
ciously— a  servant  to  leave  his  master's  service  when  the  time  for 
which  he  has  hired  himself  shall  expire  is  not  actionable,  though 
the  servant  ma*y  have  previously  had  no  intention  of  leaving.2  If 
a  third  person  maliciously,  and  not  in  the  exercise  of  any  right 
which  the  law  gives  him,  procures  a  servant  to  break  his  contract 
and  leave  his  master,  or  even  to  leave  an  employment  at  will,  and 
damage  thereby  results  to  the  master,  the  latter  may  maintain  an 
action  against  the  wrongdoer.8 

RIGHTS  OF  SERVANT  AGAINST  THIRD  PERSONS 

277.  A  servant  may  maintain  an  action  against  a  third  person  for 
causing  his  discharge,  if  he  acted  gratuitously  and  mali- 
ciously, and  damage  has  resulted,  but  not  otherwise. 

A  man  may  withhold  his  trade  from  another,  or  even  break  n 
contract  with  him,  for  the  reason  that  he  employs  a  certain  per- 
son, and  if  the  employe  is  discharged  he  has  no  cause  of  action 
against  such  person  for  causing  his  discharge;  for  a  man  does  not 
become  liable  for  injury  to  another,  caused  by  an  act  which  he  has 
a  legal  right  to  do.4  But  a  man  cannot  maliciously  and  wantonly 
interfere  with  another's  rights  without  rendering  himself  liable  for 
resulting  damage.  As  a  master  has  a  right  of  action  against  one 

99  Wlalker  v.  Cronln,  107  Mass.  555.  And  see  Haskins  v.  Royster,  70  N. 
C.  601,  16  Am.  Rep.  780;  Jones  v.  Blocker,  43  Ga.  331;  Salter  v.  Howard, 
43  Ga.  601 ;  Daniel  v.  Swearengen,  6  S.  C.  297,  24  Am.  Rep.  471. 

1  Keane  v.  Boycott,  2  H.  Bl.  511 ;    Evans  v.  Walton,  L.  R.  2  C.  P.  615 ; 
Haskins  v.  Royster,  70  X.  C.  601,  16  Am.  Rep.  780. 

2  Boston  Glass  Manufactory  v.  Blnney,  4  Pick.  (Mass.)  425. 

8  Bowen  v.  Hall,  6  Q.  B.  DIv.  333 ;  Lumley  v.  Gye,  2  El.  &  Bl.  216 ;  Walker 
v.  Cronin.  107  Mass.  555;  Chipley  v.  Atkinson,  23  Fla.  206,  1  South.  934,  11 
Am.  St.  Rep.  367  (collecting  the  cases);  Thacker  Coal  &  Coke  Co.  v.  Burke, 
59  W.  Va.  253,  53  S.  E.  161,  5  L.  R.  A.  (N.  S.)  1091,  8  Ann.  Cas.  885;  Mc- 
Bride  v.  O'Neal,  128  Ga.  473,  57  S.  E.  780 ;  George  Jonas  Glass  Co.  v.  Glass 
Bottle  Blowers'  Ass'n  of  United  States  and  Canada,  72  N.  J.  Eq.  653,  66  Atl. 
953. 

*  Chipley  v.  Atkinson.  23  Fla.  206,  1  South.  934,  11  Am.  St.  Rep.  367.  See 
Heywood  v.  Tillson,  75  Me.  225,  46  Am.  Rep.  373. 


§§  278-279)      MASTER'S  LIABILITY  TO  THIRD  PERSONS  645 

who  maliciously  induces  his  servant  to  leave  him,  so,  also,  it  is 
held  that  an  action  will  lie  on  behalf  of  a  servant  against  a  person 
•\vho  has  maliciously  procured  the  master  to  discharge  him  from 
employment  under  a  legal  contract.  And  it  has  been  further  held 
that  the  fact  that  no  contract,  nor  any  legal  right  of  the  servant 
against  the  master,  is  violated  by  the  master,  or  that  no  action  will 
lie  by  the  servant  against  the  master  for  the  discharge,  does  not 
prevent  a  recovery  against  the  third  person  for  maliciously  procur- 
ing the  discharge,  if  it  would  not  have  occurred  but  for  such  pro- 
curement.6 

MASTER'S  LIABILITY  TO  THIRD  PERSONS 

278.  The  master  is  liable  to  third  persons  on  contracts  entered 

into  by  the  servant  in  his  name,  or  on  his  behalf,  if  he  ex- 
pressly or  impliedly  authorized  the  contract,  or  if  he  sub- 
sequently ratified  it,  but  not  otherwise. 

279.  The  master  is  liable  for  frauds  and  wrong  committed  by  the 

servant,  if  expressly  or  impliedly  directed  or  authorized  by 
him,  or  if  committed  by  the  servant  in  the  course  of  the 
employment,  but  not  otherwise.  To  render  one  liable  un- 
der this  rule  the  relation  must  be  that  of  master  and  serv- 
ant, and  not  that  of  employer  and  independent  contractor. 

The  master  is  bound  by  the  act  of  his  servant,  either  in  respect 
to  contracts  or  injuries,  when  the  act  is  done  by  authority  of  the 
master.6  As  to  this  proposition  there  can  be  no  doubt.  But  there 
is  much  difficulty  when  we  come  to  determine  what  acts  on  the 
part  of  the  servant  are  to  be  deemed  authorized  by  the  master,  for 
the  authority  may  be  either  express  or  implied. 


e  Chipley  v.  Atkinson,  23  Fla.  206,  1  South.  984,  11  Am.  St.  Rep.  367  (col- 
lecting cases) ;  Lally  v.  Cantwell,  40  Mo.  App.  44 ;  W|yeman  v.  Deady,  79 
Conn.  414,  65  Atl.  129,  118  Am.  St.  Rep.  152,  8  Ann.  Gas.  375;  Brennan  v. 
United  Hatters  of  North  America,  Local  No.  17,  73  N.  J.  Law,  729,  65  Atl. 
165,  9  L.  R.  A.  (N.  S.)  254,  118  Am.  St.  Rep.  727,  9  Ann.  Cas.  698.  An  em- 
ployer's liability  insurance  company,  which  procures  the  discharge  of  an 
employ^  who  has  sued  the  insured  employer  for  personal  injury,  with  intent 
to  injure  him,  is  liable  to  such  employed  Gibson  v.  Fidelity  &  Casualty  Co., 
232  111.  49,  83  N.  E.  539.  See,  also,  London  Guarantee  &  Accident  Co.  v. 
Horn,  206  111.  493,  69  N.  E.  526,  99  Am.  St.  Rep.  185. 

62  Kent,  Comm.  259. 


646  MASTER  AND  SERVANT  (Ch.  16 

On  Contracts  by  the  Servant 

The  liability  of  the  master  on  contracts  entered  into  bv  the  serv- 
ant depends  upon  principles  of  the  law  of  agency.  If  he  is  liable 
at  all  upon  a  contract  made  on  his  behalf  by  his  servant,  it  must 
be  either  because  he  authorized  the  servant  to  make  the  contract, 
or  ratified  it  when  made.  Without  this  there  can  be  no  liability.7 
The  master  is  liable,  of  course,  whenever  he  has  given  the  servant, 
an  express  authority  to  contract.  He  is  also  liable  if  he  has  impli- 
edly  authorized  the  servant,  as  by  holding  him  out  as  having  au- 
thority.8 He  is  also  liable  if  he  ratifies  the  servant's  act  in  con- 
tracting without  authority.9 

For  the  Servant's  Torts 

If  the  servant  does  an  injury  fraudulently  or  wrongfully,  while 
in  the  immediate  employment  of  the  master,  and  in  the  course  of 
such  employment,  the  master,  as  well  as  the  servant,  is  liable  there- 
for, even  though  the  wrongful  act  may  have  been  done  .contrary  to 
the  master's  orders.10  And  if  an  injury  results  from  the  negli- 
gence or  want  of  skill  of  the  servant,  while  acting  within  the  scope 
of  his  employment,  the  master,-  as  well  as  the  servant,  is  liable.11 

T  Clark,  Cont.  717 ;  President,  etc.,  of  Mechanics'  Bank  v.  New  York  & 
N.  H.  R.  Co.,  13  N.  Y.  599. 

«  Clark,  Cont.  717 ;  Morey  v.  Webb,  58  N.  Y.  350 ;  Bentley  v.  Doggett,  51 
Wis.  224,  8  N.  W.  155,  37  Am.  Rep.  827. 

o  Clark,  Cont.  719,  and  eases  there  cited. 

10  2  Kent,  Comm.  259;    Limpus  v.  London  General  Omnibus  Co.,  1  Hurl. 
&  C.  528:    Whatman  v.  Pearson,  L.  R.  3  C.  P.  422;    Jeffrey  v.  Bigelow,  13 
Wend.  (N.  Y.)   518,  28  Am.  Dec.  476;    Drew  v.  Railroad  Co.,  26  N.  Y.  49; 
Doran  v.  Thomsen,  74  N.  J.  Law,  445,  66  Atl.  897;    Houck  v.  Chicago  &  A. 
R.  Co.,  116  Mo.  App.  559,  92  S.  W.  738;    Chicago  City  Ry.  Co.  v.  McMahon, 
103  111.  485,  42  Am.  Rep.  29;    Evans  v.  Davidson,  53  Md.  245,  36  Am.  Rep. 
400;   Mound  City  Paint  &  Color  Co.  v.  Conlon,  92  Mo.  221,  4  S.  W.  922 ;    Har- 
ris v.  Louisville,  N.  O.  &  T.  R.  Co.   (C.  C.)  35  Fed.  116;   Driscoll  v.  Carlin, 
50  N,  J.  Law,  28,  11  Atl.  482;    Lee  v.  Lord,   76  Wis.  582,  45  N.  W.  601; 
French  v.  Cresswell,  13  Or.  418,  11  Pac.  62;    Eichengreen  v.  Railroad  Co., 
96  Tenn.  229,  34  S.  W.  219,  31  L.  R.  A.  702,  54  Am.  St.  Rep.  833.    But  see 
Andrews  v.  Green,  62  N.  H.  436.    The  fact  that  signal  torpedoes,  negligently 
placed  on  a  railroad  track  by  trainmen,  who  were  authorized  to  use  them 
in  the  management  of  the  train,  were  put  there  when  there  was  no  neces- 
sity for  doing  so,  and  contrary  to  the  rules  of  the  company,  does  not  ex- 
empt the  company  from  liability  to  one  who  is  injured  thereby.     Harriinan 
v.  Railroad  Co.,  45  Ohio  St.  11,  12  N.  E.  451,  4  Am.  St.  Rep.  507. 

11  Evans  v.  Davidson,  53  Md.  245,  36  Am.  Rep.  400.     In  this  case,  a  gen- 
eral farm  hand,  working  in  his  master's  cornfield,  undertook,  in  his  master's 
absence,  and  without  express  direction,  to  drive  out  a  neighbor's  cow,  which 
had  broken  into  the  field,  and,  in  doing  so,  negligently  struck  her  with  a  stone, 


§§  278-279)     MASTER'S  LIABILITY  TO  THIRD  PERSONS  647 

"In  one  sense,  where  there  is  no  express  command  by  the  master, 
all  .wrongful  acts  done  by  the  servant  may  be  said  to  be  beyond 
the  scope  of  the  authority  given ;  but  the  liability  of  the  master  is 
not  determined  upon  any  such  restricted  interpretation  of  the  au- 
thority and  duty  of  the  servant.  If  the  servant  be  acting  at  the 
time  in  the  course  of  his  master's  service,  and  for  his  master's 
benefit  within  the  scope  of  his  employment,  then  his  act,  though 
wrongful  or  negligent,  is  to  be  treated  as  that  of  the  master,  al- 
though no  express  command  or  privity  of  the  master  be  shown."  12 
If  the  servant,  in  committing  the  wrong,  is  not  acting  in  the  course 

and  killed  her.  The  master  was  held  liable.  And  see  the  cases  cited  In  the 
preceding  note.  So,  where  a  master  sent  his  servant  to  do  certain  grub- 
bing, and  the  servant  set  a  fire  to  facilitate  his  work,  the  master  was  held 
liable  for  the  consequences  of  the  servant's  negligence.  Ellegard  v.  Ack- 
land,  43  Minn.  352,  45  N.  W.  715.  See,  also,  the  following  cases,  in  which 
a  master  was  held  liable  for  injuries^  caused  by  the  negligence  of  his  serv- 
ant: Pike  v.  Brittan,  71  Cal.  159,  11  Pac.  890,  60  Am.  Rep.  527;  French  v. 
Cresswell,  13  Or.  418,  11  Pac.  62;  Illinois  Cent.  R.  Co.  v.  Downey,  18  111. 
259;  Scammon  v.  City  of  Chicago,  25  111.  424,  79  Am.  Dec.  334;  Andrews 
v.  Boedecker,  126  111.  605,  18  N.  E.  651,  9  Am.  St.  Rep.  649 ;  Cosgrove  v.  Og- 
den,  49  N.  Y.  255,  10  Am.  Rep.  361 ;  Mauchle  v.  Panama-Pacific  International 
Exposition  Co.,  37  Cal.  App.  715,  174  Pac.  400;  Ridenour  v.  International 
Harvester  Co.  (Mo.  App.)  205  S.  W.  881;  Standard  Oil  Co.  v.  Parkinson,  152 
Fed.  681,  82  C.  C.  A.  29 ;  Mattingly  v.  Montgomery,  106  Md.  461,  68  Atl.  205 ; 
Feneff  v.  Boston  &  M.  R.  R.,  196  Mass.  575,  82  N.  E.  705 ;  Wakefield  v.  Bos- 
ton Coal  Co.,  197  Mass.  527,  83  N.  E.  1116;  Sherwood  v.  Warner,  27  App.  D. 
C.  64,  4  L.  R.  A.  (N.  S.)  651,  7  Ann.  Gas.  98.  But  see  Chapman  v.  Under- 
wood, 27  Phil.  Rep.  374  (1914),  holding,  if  a  competent  driver  of  an  auto- 
mobile in  which  the  owner  thereof  is  at  the  time  present,  by  a  sudden  act  of 
negligence,  without  the  owner  having  a  reasonable  opportunity  to  prevent  the 
act  or  its  continuance,  violates  the  law,  the  owner  of  the  automobile  is  not 
responsible,  either  civilly  or  criminally,  therefor.  The  act  complained  of 
must  be  continued  in  the  presence  of  the  owner  for  such  a  length  of  time 
that  he,  by  acquiescence,  makes  his  driver's  act  his  own. 

12  Evans  v.  Davidson,  53  Md.  245,  36  Am.  Rep.  400.  See,  also,  Variety  Mfg. 
Co.  v.  Landaker,  129  111.  App.  630;  Usher  v.  Western  Union  Telegraph  Co., 
122  Mo.  App.  98,  98  S.  W.  84;  Columbus  R.  Co.  v.  Woolfolk,  128. Ga.  631, 
58  S.  E.  152,  10  L.  R.  A.  (N.  S.)  1136,  119  Am.  St.  Rep.  404;  Lotz  v.  Hanlon, 
217  Pa.  339,  66  Atl.  525,  10  L.  R.  A.  (N.  S.)  202,  118  Am.  St.  Rep.  922,  10  Ann. 
Cas.  731;  South  Covington  &  C.  St.  Ry.  Co.  v.  Cleveland,  100  S.  W.  283,  30 
Ky.  Law  Rep.  1072,  11  L.  R.  A.  (N.  S.)  853;  Coal  Belt  Electric  Ry.  Co.  v. 
Young,  126  111.  App.  651.  But  an  act  done  by  a  servant,  while  engaged  in 
his  master's  work,  causing  injury  to  a  third  person,  but  not  done  for  the 
purpose  of  performing  that  work,  cannot  be  deemed  the  act  of  the  master. 
Dougherty  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  137  Iowa,  657,  114  N.  W.  902,  14  L. 
R,  A.  (N.  S.)  590,  126  Am.  St.  Rep.  282.  The  expression,  "in  the  course  of  his 
employment,"  as  affecting  the  liability  of  a  master  for  the  negligence  of  his 
servants,  means  "while  engaged  in  the  service  of  the  master,"  and  is  not 
synonymous  with  "during  the  period  covered  by  his  employment."  Slater 


(•48  MASTER  AND  SERVANT  (Ch.  16 

of  his  employment,  the  master  is  not  answerable.1'  The  difficulty 
is  in  determining,  in  particular  cases,  whether  the  servant  was  or 
was  not  so  acting.  The  test  of  a  master's  responsibility  for  the  act 
of  his  servant  is  whether  the  act  was  done  in  the  prosecution  of 
the  master's  business,  not  whether  it  was  done  in  accordance  with 
the  instructions  of  the  master  to  the  servant.14  When,  therefore, 
the  servant,  while  engaged  in  the  prosecution  of  the  master's  busi- 
ness, deviates  from  his  instructions  as  to  the  manner  of  doing  it, 
this  does  not  relieve  the  master  from  liability  for  his  acts.10 

v.  Advance  Thresher  Co.,  97  Minn.  305,  107  N.  W.  133,  5  L.  R.  A.  (N.  S.) 

598. 

is  Stone  v.  Hills,  45  Conn.  44,  29  Am.  Rep.  635.  In  this  case  the  defend- 
ants had  ordered  their  teamster  to  deliver  a  wagon  load  of  paper  to  one  T., 
in  Glastonbury  lour  miles  distant,  and  to  return,  by  way  of  Nipsic  with  a  load 
of  wood.  On  reaching  T.'s,  the  teamster  was  requested  by  T.  to  carry  the 
paper  to  Hartford,  four  and  a  half  miles  further,  and,  at  the  railway  sta- 
tion there,  to  get  some  freight  of  T.'s  and  bring  it  to  him.  The  teamster  con- 
sented, and,  while  he  was  paying  the  freight  bill  at  the  station,  the  team,  be- 
ing left  unfastened,  ran  away,  and  injured  the  plaintiff's  property.  It  was 
held  that  the  teamster  was  not  engaged  in  the  defendants'  employment  at  the 
time  of  the  injury,  and  the  defendants  were  not  liable.  And  see  Mitchell  v. 
Crassweller,  13  C.  B.  237;  Sheridan  v.  Charlick,  4  Daly  (N.  Y.)  338;  Cava- 
nagh  v.  Dinsmore,  12  Hun  (N.  Y.)  465.  Mere  deviation  from  the  route  or- 
dered by  the  master  in  these  and  similar  cases  (running  a  boat,  for  instance) 
is  not  a  departure  from  the  employment.  See  Quinn  v.  Power,  87  N.  Y.  535, 
41  Am.  Rep.  392;  for  illustrations  of  injuries  caused  by  servants  when  not 
acting  in  the  course  of  their  employment,  see  Wilson  v.  Peverly,  2  N.  H.  548 ; 
Flower  v.  Railroad  Co.,  69  Pa.  210,  8  Am.  Rep.  251 :  Snyder  v.  Railroad  Co., 
60  Mo.  413;  Mali  v.  Lord,  39  N.  Y.  381,  100  Am.  Dec.  448;  McClenaghan  v. 
Brock,  5  Rich.  Law  (S.  C.)  17 ;  Little  Miami  R.  Co.  v.  Wetmore,  19  Ohio  St. 
110,  2  Am.  Rep.  373;  Patterson  v.  Kates  (C.  C.)  152  Fed.  481;  Younkin  v. 
Rocheford,  76  Neb.  528,  107  N.  W.  853.  110  N.  W.  682;  Chase  v.  Knabel,  46 
Wash.  484,  90  Pac.  642,  12  L.  R.  A.  (N.  S.)  1155.  The  fact  that  the  servant 
in  committing  the  tort  in  connection  with  his  own  affairs  uses  facilities  af- 
forded by  the  relation  of  master  and  servant  does  not  render  the  master  lia- 
ble. St.  Louis  Southwestern  Ry.  Co.  v.  Harvey,  144  Fed.  806,  75  C.  C.  A. 
536;  Louisville  &  N.  R.  Co.  v.  Gillen,  166  Ind.  321,  76  N.  E.  1058;  Slater  v. 
Advance  Thresher  Co.,  97  Minn.  305,  107  N.  W.  133,  5  L.  R.  A,  (N.  S.)  598. 

i<Hogle  v.  H.  H.  Franklin  Mfg.  Co.  (Sup.)  105  N.  Y.  Supp.  1094;  Clark 
v.  Koehler,  46  Hun  (N.  Y.)  536;  Gregory's  Adm'r  v.  Ohio  River  R.  Co.,  37 
,W.  Va.  606,  16  S.  E.  819. 

"Cosgrove  v.  Ogden,  49  N.  Y.  255,  10  Am.  Rep.  361.  It  was  said  in  this 
case:  "If  the  owner  of  a  building  employs  a  servant  to  remove  the  roof  from 
his  house,  and  directs  him  to  throw  the  materials  upon  his  lot,  where  no  one 
would  be  endangered,  and  the  servant,  disregarding  this  direction,  should 
carelessly  throw  them  Into  the  street,  causing  an  injury  to  a  passenger,  the 
master  would  be  responsible  therefor,  although  done  in  violation  of  his  in- 
structions, because  it  was  done  in  the  business  of  the  master.  But  should 
the  servant,  for  some  purpose  of  his  own,  intentionally  throw  material  upon 


§§  278-279)     MASTER'S  LIABILITY  TO  THIRD  PERSONS  649 

In  McManus  v.  Crickett,16  a  leading  English  case,  it  was  held 
in  substance,  that  the  master  is  not  liable  for  an  injury  willfully 
committed  by  his  servant  while  engaged  in  the  master's  business, 
without  the  direction  or  assent  of  the  master.  In  that  case  it  was 
held  that  a  master  was  not  liable  in  trespass  for  the  willful  act  of 
his  servant  in  driving  the  master's  carriage  against  another  with- 
out the  master's  direction  or  assent.  Lord  Kenyon  said  that  when 
the  servant  quitted  sight  of  the  object  for  which  he  was  employed, 
and,  without  having  in  view  his  master's  orders,  pursued  the  ob- 
ject which  his  own  malice  suggested,  he  no  longer  acted  in  pur- 
suance of  the  authority  given  him,  and  it  was  deemed,  so  far,  a 
willful  abandonment  of  his  master's  business.  This  doctrine  is 
very  generally  recognized  in  this  country,  but  the  courts  do  hot  al- 
ways agree  in  applying  it  to  particular  cases.17  If  the  act  for  which 
it  is  sought  to  hold  the  master  liable  was  in  fact  done  by  the  serv- 
ant in  the  course  of  his  employment,  the  fact  that  he  acted  will- 
fully and  maliciously  will  not  prevent  liability  from  attaching  to 
the  master.  As  was  said  by  the  Ohio  court:  "Where  a  person  is 
injured  by  the  act  of  a  servant,  done  in  the  course  ol  his  employ- 
ment, we  see  no  good  reason  why  the  motive  or  intention  of  the* 
servant  should  operate  to  discharge  the  master  from  liability.  If 
the  nature  of  the  injurious  act  is  such  as  to  make  the  master  liable 
for  its  consequences,  in  the  absence  of  the  particular  intention,  it 
is  not  perceived  how  the  presence  of  such  intention  can  be  held 
to  excuse  the  master."18  It  has  repeatedly  been  held  that  if  the 

a  passenger,  the  master  would  not  t>e  responsible  for  the  injury  because  it 
would  not  be  an  act  done  in  his  business,  but  a  departure  therefrom  by  the 
servant,  to  effect  some  purpose  of  his  own."  In  Garretzen  v.  Duenckel,  50  Mo. 
104,  11  Am.  Rep.  405,  a  clerk  in  the  gun  store,  while  engaged  during  the  pro- 
prietor's absence,  in  exhibiting  a. gun  to  a  customer,  loaded  it,  contrary  to  the 
proprietor's  orders.  In  doing  so,  it  was  accidentally  discharged,  and  shot  and 
•wounded  a  person  on  the  opposite  side  of  the  street.  The  proprietor  was  held 
responsible.  See,  also,  Grant  v.  Singer  Mfg.  Co.,  190  Mass.  489,  77  N.  E.  480, 
6  L.  R.  A.  (N.  S.)  567,  and  Sharp  v.  Erie  R.  Co..  184  N.  Y.  100,  76  N.  E.  923, 
6  Ann.  Cas.  250,  where  the  servant  disregarded  the  master's  orders. 

i«  1  East.  106. 

17  Foster  v.  Bank,  17  Mass.  508,  9  Am.  Dec.  168;  Wright  r.  Wllcox,  19 
Wend.  (N.  Y.)  343,  32  Am.  Dec.  507 ;  Vanderbilt  v.  Turnpike  Co.,  2  N.  Y.  479, 
51  Am.  Dec.  315;  Fraser  v.  Freeman,  43  N.  Y.  566,  3  Am.  Rep.  740;  Isaacs 
v.  Railroad  Co.,  47  N.  Y.  122,  7  Am.  Rep.  418 ;  Cox  v.  Keahey,  36  Ala.  340,  76 
Am.  Dec.  325;  New  Orleans,  J.  &  G.  N.  R.  Co.  v.  Harrison,  48  Miss.  112,  12 
Am.  Rep.  356;  Neville  v.  Chicago  &  A.  R.  Co.,  210  111.  App.  168;  Tuller  v. 
Voght,  13  111.  277 ;  Oxford  v.  Peter,  28  111.  434. 

is  Passenger  R.  Co.  v.  Young,  21  Ohio  St.  518,  8  Am.  Rep.  78. 


650  MASTER  AND  SERVANT  (Ch.  16 

conductor  or  other  employes  on  a  railroad  train  or  on  a  boat  unlaw- 
fully assault  and  injure  a  passenger,  or  even  a  trespasser,  the  rail- 
road company  or  owner  of  the  boat  is  liable,  notwithstanding  th« 
servant  acted  willfully  and  from  personal  and  malicious  motives.19 
His  conduct  is  none  the  less  in  the  course  of  his  employment  be- 
cause of  his  motive.  The  rule  would  be  different  if  the  conductor 
or  brakeman  on  a  railroad  train  should  willfully  and  maliciously  as- 
sault or  otherwise  injure  a  mere  stranger,  to  whom  the  company 
owed  no  duty  at  all,20  or  if  the  tortious  act  was  committed  while 
the  servant  was  not  on  duty.21 

A  railroad  company  has  been  held  liable  for  injuries  caused  by 
the  wrongful  act  of  its  locomotive  engineer  in  blowing  the  whistle, 


i» Passenger  E.  Co.  v.  Young,  21  Ohio  St.  518,  3  Am.  Rep.  78;  Bryant  v. 
Rich,  106  Mass.  180,  8  Am.  Rep.  311 ;  Sherley  v.  Billings,  8  Bush.  (Ky.)  147, 
8  Am.  Rep.  451;  Rounds  v.  Railroad  Co.,  64  N.  Y.  129,  21  Am.  Rep.  597; 
Shea  v.  Railroad  Co.,  62  N.  Y.  180,  20  Am.  Rep.  480;  Higgins  v.  Railroad 
Co.,  46  N.  Y.  23,  7  Am.  Rep.  293;  Hoffman  v.  Railroad  Co.,  87  N.  Y.  25,  41 
Am.  Rep.  337;  Dwinelle  v.  Railroad  Co.,  120  N.  Y.  117,  24  N.  B.  319,  8  L. 
R.  A.  224,  17  Am.  St.  Rep.  611 ;  Chicago  &  E.  R.  Co.  v.  Flexman,  103  111.  546, 
42  Am.  Rep.  33;  North  Chicago  City  Ry.  Co.  v.  Gastka,  128  111.  613,  21  N.  E. 
522,  4  L.  R.  A.  481;  Goddard  v.  Railway  Co.,  57  Me.  202,  2  Am.  Rep.  39; 
Hanson  v.  Railway  Co.,  62  Me.  84,  16  Am.  Rep.  404;  McKinley  v.  Railroad 
Co.,  44  Iowa,  314,  24  Am.  Rep.  748;  New  Orleans,  St.  L.  &  C.  R.  Co.  v.  Burke, 
53  Miss.  200,  24  Am.  Rep.  689;  Philadelphia,  W.  &  B.  R.  Co.  v.  Larkin,  47 
Md.  155,  28  Am.  Rep.  442 ;  Carter  v.  Railway  Co.,  98  Ind.  552,  49  Am.  Rep. 
780.  In  Craker  v.  Railway  Co.,  36  Wis.  657,  17  Am.  Rep.  504,  a  railroad  com- 
pany was  held  liable  where  its  conductor  kissed  a  female  passenger  against 
her  will.  In  Isaacs  v.  Railroad  Co.,  47  N.  Y.  122,  7  Am.  Rep.  418,  the  plaintiff, 
while  a  passenger  on  a  street  car,  and  wishing  to  alight,  passed  out  upon  the 
platform,  and  asked  the  conductor  to  stop  the  car,  telling  him  she  would  not 
get  out  until  the  car  should  come  to  a  full  stop.  The  conductor  thereupon, 
while  the  car  was  in  motion,  threw  her  from  the  car  with  great  violence, 
breaking  her  leg.  It  was  held  that  this  was  a  wanton  and  willful  trespass,  for 
which  the  company  was  not  liable.  This  case  was  severely  criticized,  and 
has  been,  in  effect,  overruled  by  the  later  New  York  cases.  See  Hoffman  v. 
Railroad  Co.,  87  N.  Y.  25,  41  Am.  Rep.  337;  Dwinellevv.  Railroad  Co.,  120  N. 
Y.  117,  24  N.  E.  319,  8  L.  R.  A.  224,  17  Am.  St.  Rep.  611 ;  Shea  v.  Railroad 
Co.,  62  N.  Y.  180,  20  Atn.  Rep.  480. 

2oChic:igo  &  E.  R.  Co.  v.  Flexman,  103  111.  546,  42  Am.  Rep.  33;  New 
Orleans,  J.  &  G.  N.  R.  Co.  v.  Harrison,  48  Miss.  112,  12  Am.  Rep.  356;  Marion 
v.  Railroad  Co.,  59  Iowa,  428,  13  N.  W.  415,  44  Am.  Rep.  687 ;  Central  Ry.  Co. 
v.  Peacock,  69  Md.  257,  14  Atl.  709,  9  Am.  St.  Rep.  425;  Williams  v.  Car 
Co.,  40  La.  Ann.  87,  3  South.  631,  8  Am.  St.  Rep.  512. 

21  St.  Louis  &  S.  F.  R.  Co.  v.  Wyatt,  84  Ark.  193,  105  S.  W.  72.  See,  also, 
Southern  Ry.  Co.  v.  Power  Fuel  Co.,  152  Fed.  917,  82  C.  C.  A.  65,  12  L.  R.  A. 
(N.  S.)  472,  where  the  servant  while  off  duty  was  guilty  of  negligence. 


§§  278-279)      MASTER'S  LIABILITY  TO  THIRD  PERSONS  G51 

or  allowing  steam  to  escape,  and  thereby  frightening  horses,  though 
he  acted  willfully  and  maliciously.22 

Relation  of  Master  and  Servant  Must  Exist 

The  person  by  whom  tne  injury  was  caused  must  have  been  the 
servant  of  the  person  whom  it  is  sought  to  charge,  and  in  his  em- 
ploy, at  the  time  of  the  injury.28  It  is  not  enough,  in  order  to 
establish  a  liability  of  one  person  for  the  negligence  of  another, 
to  show  that  the  person  whose  negligence  caused  the  injury  was  at 
the  tirrie  acting  under  an  employment  by  the  person  who  is  sought 
to  be  charged.  It  must  be  shown,  in  addition,-  that  the  employ- 
ment was  of  such  a  character  as  to  create  the  relation  of  master 
and  servant  between  them.  "Unless  the  relation  of  master  and 
servant  exists,  the  law  will  not  impute  to  one  person  the  negli- 
gent act  of  another."  24  As  has  heretofore  been  pointed  out,  a  mere 

22  Toledo,  W.  &  W.  Ry.  Co.  v.  Harmon,  47  111.  298,  95  Am.  Dec.  489;   Chica- 
go, B.  &  Q.  R.  Co.  v.  Dickson,  63  111.  151,  14  Am.  Rep.  114;    Nashville  &  C. 
R.  Co.  v.  Starnes,  9  Heisk.  (Term.)  52,  24  Am.  Rep.  296. 

23  See  Sawyer  v.  Martins,  25  111.  App.  521;    Sexton  v.  New  York  Cent.  & 
H.  R.  R.  Co.,  114  App.  Div.  678,  99  N.  Y.  Supp.  1111 ;    Marsh  v.  Hand,  120  N. 
Y.  315,  24  N.  E.  463.     "It  is  not  necessary  that  he  should  be  shown  to  have 
been  in  the  general  employment  of  the  defendant,  nor  that  he  should  be 
under  any  special  engagement  of  service  to  him,  or  entitled  to  receive  com- 
pensation from  him  dtrectly.     It  is  enough  that  at  the  time  of  the  accident 
he  was  in  charge  of  the  defendant's  property  by  his  assent  and  authority, 
engaged  in  his  business,  arid,  in  respect  to  that  property  and  business,  un- 
der his  control.    The  fact  that  there  is  an  intermediate  party,  in  whose  gen- 
eral employment  the  person  whose  acts  are  in  question  is  engaged,  does  not 
prevent  the  principal  from  being  held  Mable  for  the  negligent  conduct  of  the 
subagent  or  underservant,  unless  the  relation  of  such  intermediate  party  to 
the  subject-matter  of  the  business  in  which  the  underservant  is  engaged  be 
such  as  to  give  him  exclusive  control  of  the  means  and  manner  of  its  ac- 
complishment,  and   exclusive  direction   of   the  persons   employed   therefor." 
Kimball  v.  Cushman,  103  Mass.  194,  4  Am.  Rep.  528.    And  see  Ewan  v.  Lip- 
pincott,  47  N.  J.   Law,   192,   54  Am.   Rep.   148;    Houseman  v.   Philadelphia 
Transportation  &  Lighterage  Co.  (C.  C.)  141  Fed.  385.    If  the  master  hires  the 
services  of  his  servant  to  another  temporarily,  but  retains  control,  he  re- 
mains the  master,  and  is  liable  for  the  acts  of  the  servant  in  the  course  of 
the  employment;    and  it  can  make  no  difference  that  the  services  of  this 
particular  servant  were  requested  by  the  third  party.     This  question  arises 
where  a  person  hires  a  team  from  another,  together  with  the  driver.     Ordi- 
narily, the  driver  remains  the  servant  of  the  owner  of  the  team.     See  Quar- 
man  v.  Burnett,  6  Mees.  &  W.  499 ;    Joslin  v.  Ice  Go.,  50  Mich.  516,  15  N.  W. 
887,  45  Am.  Rep.  54;    Frerker  v.  Nicholson,  41  Colo.  12,  92  Pac.  224,  13  L. 
R.  A.  (N.  S.)  1122,  14  Ann.  Cas.  730 ;   Blake  v.  Ferris,  5  N.  Y.  48,  55  Am.  Dec. 
304 ;   Norris  v.  Kohler,  41  N.  Y.  42 ;   Crockett  v.  Calvert,  8  Ind.  127 ;    Huff  v. 
Ford,  126  Mass.  24,  30  Am.  Rep.  645;    Hershberger  v.  Lynch  (Pa.)   11  Atl. 
642 ;   Muse  v.  Stern,  82  Va.  33,  3  Am.  St.  Rep.  77. 

24  King  v.  Railroad  Co.,  66  N.  Y.  181,  23  Am.  Rep.  37;    Bassi  v.  Ortb,  58 


652  MASTER  AND  SERVANT  (Ch.  16 

volunteer  may,  by  assisting  the  servants  of  another  in  the  service 
of  the  master,  either  at  the  request  or  without  the  request  of  such 
servants,  stand  in  the  relation  of  a  servant  for  the  time  being, 
and  may  be  regarded  as  assuming  all  -the  risks  incident  to  the 
business.25  Whether  or  not  such  a  volunteer  becomes  a  servant, 
so  that  the  master  of  the  other  servants  will  be  liable  for  his  wrong- 
ful acts  or  negligence  in  the  course  of  the  employment,  must  be- 
pend  upon  the  authority  of  the  other  servants  to  thus  employ  as- 
sistance. If  they  had  such  authority,  express  or  implied,  the  master 
is  liable;  otherwise  he  is  not.26 

Independent  Contractors 

There  is  a  wide  difference  between  a  servant  and  an  independ- 
ent contractor.  If  a  person  contracts  with  another,  who  is  engaged 
in  an  independent  employment,  for  the  doing  of  certain  work  by 
the  latter,  but  does  not  personally  interfere  or  give  directions  re- 
specting the  manner  of  the  work,  the  relationship  of  master  and 
servant  does  not  exist,  but  the  party  employed  is  an  independent 
contractor.  "If  one  renders  service,  in  the  course  of  an  occupa- 
tion, representing  the  will  of  his  employer  only  as  to  the  result  of 
his  work,  and  not  as  to  the  means  by  which  it  is  accomplished,  it 
is  an  independent  employment."  2T  The  fact  that  the  contractor  is 

Misc.  Rep.  372,  109  N.  Y.  Supp.  88 ;  Parkes  v.  Seasongood  (C.  C.)  152  Fed.  583. 
The  test  of  one's  liability  for  the  negligent  act  or  omission  of  his  alleged 
servant  is  his  right  and  power  to  command  and  control  his  imputed  agent 
in  the  performance  of  the  causal  act  or  omission  at  the  very  instant  of  the 
performance  or  neglect.  Standard  Oil  Co.  v.  Parkinson,  152  Fed.  681,  82  C. 
C.  A.  29. 

2  s Ante,  p.  623. 

26  See  Althorf  v.  Wolfe,  22  N.  Y.  355;    Thyssen  v.  Davenport  Ice  &  Cold 
Storage  Co.,  134  Iowa,  749,  112  N.  W.  177,  .13  L.  R.  A.  (N.  S.)  572;    Cooper 
v.  Lowery,  4  Ga.  App.  120,  60  S.  E.  1015.    But  he  may  be  liable  for  the  neg- 
ligence of  the  servant  in  permitting  the  stranger  to  assist  him.    Thyssen  v. 
Davenport  Ice  &  Cold  Storage  Co.,  134  Iowa,  749,  112  N.  W.  177,  13  L.  R.  A. 
(N.  S.)  572. 

27  Harrison  jr.  Collins,  86  Pa.  153,  27  Am.  Rep.  699.  And  see  Hilliard  v. 
Richardson,  3  Gray  (Mass.)  349,  63  Am.  Dec.  743;    Blake  v.  Ferris,  5  N.  Y. 
48,  55  Am.  Dec.  304 ;   Pack  v.  Mayor,  etc.,  8  X.  Y.  222 ;   Hollenback  v.  Hardin, 
205  111.  App.  528;    Cole  v.  City  of  Durham,  176  N.  C.   289,  97   S.  E.  33; 
Clinchfield  Coal  Corporation  v.  Redd,  123  Va.  420,  96  S.  E.  836 ;  King  v.  Rail- 
road Co.,  66  N.  Y.  181,  23  Am.  Rep.  37 ;  Marsh  v.  Hand,  120  N.  Y.  315,  24  N.  E. 
463;  Metzinger  v.  New  Orleans  Board  of  Trade,  120  La.  124,  44  South.  1007; 
Wilniot  v.  McPadden,  79  Conn.  367,  65  Atl.  157;    McBride  v.  Jerry  Madden 
Shingle  Co.,  173  Mich.  248,  138  N.  W.  1077;    McHarge  v.  M.  M.  Newcomer 
&  Co.,  117  Tenn.  595,  100  S.  W.  700,  9  L.  R,  A.  (X.  S.)  298;   Scammon  v.  City 


§§  278-279)     MASTER'S  LIABILITY  TO  THIRD  PERSONS  653 

paid  by  the  day  does   not  necessarily   destroy  the  independent 
character  of  the  employment.28 

It  is  well  settled,  both  in  England  and  in  this  country,  that  a 
person  who  employs  an  independent  contractor  to  do  work  for  him 
is  not  liable  for  the  wrongful  acts  or  neglect  of  the  contractor  or 
his  servants  in  the  performance  of  the  work,  where  the  work  to 
be  done  under  the  contract  is  lawful.29  In  Harrison  v.  Collins  80 

of  Chicago,  25  111.  424,  79  Am.  Dec.  334;  Hollenbeck  v.  Winnebago  Co.,  95 
111.  148,  35  Am.  Rep.  151;  Kepperly  v.  Ramsden,  83  111.  354;  Schwartz  v. 
Gilmore,  45  111.  455,  92  Am.  Dec.  227;  Moore  v.  Sanborne,  2  Mich.  519,  59 
Am.  Dec.  209;  Barry  v.  City  of  St.  Louis,  17  Mo.  121;  Powell  v.  Construc- 
tion Co.,  88  Tenn.  692,  13  S.  W.  691,  17  Am.  St.  Rep.  925.  Whether  a  person 
employed  to  do  certain  work  is  to  be  regarded  as  a  servant  or  as  an  inde- 
pendent contractor  depends  mainly  upon  whether,  under  the  contract,  the 
employer  retains  the  power  of  directing  and  controlling  the  work.  Where 
the  employe  is  put  in  exclusive  possession,  and  has  exclusive  control,  furnish- 
ing his  own  assistants,  and  executing  the  work  in  detail,  clear  of  any  super- 
vision, he  is  an  independent  contractor.  It  is  otherwise  If  the  employer  re- 
tains the  direction  and  control  of  the  work.  Johnson  v.  Western  &  A.  R.  Co.,  4 
Ga.  App.  131,  60  S.  E.  1023 ;  Kampmann  v.  Rothwell  (Tex.  Civ.  App.)  107  S. 
W.  120;  and  cases  above  cited.  Or  if  the  work  is  done  according  to  the  di- 
rection of,  or  specifications  furnished  by,  the  employer.  Hedstrom  v.  Union 
Forest  Co.,  7  Cal.  App.  278,  94  Pac.  386;  Kansas  City,  M.  &  O.  Ry.  Co.  v. 
Loosley,  76  Kan.  103,  90  Pac.  990.  One  who,  exercising  an  independent  em- 
ployment, contracts  to  do  work  according  to  his  own  methods,  without  being 
subject  to  the  employer's  control,  except  as  to  the  result  is  an  independent 
contractor.  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Bennett,  36  Okl.  358,  128  Pac. 
705.  In  Harrison  v.  Collins,  86  Pa.  153,  27  Am.  Rep.  699,  the  owners  of 
a  sugar  refinery  employed  a  rigger  to  remove  machinery  from  a  railroad 
car  to  their  refinery;  but,  though  they  paid  him  by  the  day,  they  neither 
interfered  with  nor  directed  the  manner  of  the  work.  It  was  held  that  the 
rigger  was  an  independent  contractor,  and  not  a  servant.  Among  other  em- 
pi  oy6s  who  have  been  held  to  be  independent  contractors  may  be  mentioned: 
A  public  licensed  drayman,  employed  to  haul  goods,  De  Forrest  v.  Wright,  2 
Mich.  368;  lessee  of  coal  mine,  Bokoshe  Smokeless  Coal  Co.  v.  Morehead, 
34  Okl.  424,  126  Pac.  1033;  a  contractor  employed  to  erect  a  build- 
ing, Hilliard  v.  Richardson,  3  Gray  (Mass.)  349,  63  Am.  Dec.  743;  Edmundson 
v.  Coca-Cola  Co.  (Tex.  Civ.  App.)  150  S.  W.  273;  a  plumber  employed  to  re- 
pair water  -pipes,  Bennett  v.  Truebody,  66  Cal.  509,  6  Pac.  329,  56  Am.  Rep. 
117;  contractor  employed  by  railroad  company  to  build  road,  or  to  grade, 
Louisville,  N.  O.  &  T.  R.  Co.  v.  Conroy,  63  Miss.  562,  56  Am.  Rep.  835.  A  per-- 
son  employed  by  a  railroad  company  to  clear  off  and  burn  brush  and  rubbish 
from  its  right  of  way,  at  a  certain  sum  per  mile,  who  hires,  pays,  and  controls 
his  own  help,  is  not  a  servant  of  the  company,  but  an  independent  contractor. 
St.  Louis,  I.  M.  Sf  S.  Ry.  Co.  v.  Yonley  (Ark.)  13  S.  W.  333. 

28  Harrison  v.  Collins,  86  Pa.  153,  27  Am.  Rep.  699;   Forsyth  v.  Hooper,  11 
Allen  (Mass.)  419;  Corbin  v.  American  Mills,  27  Conn.  274,  71  Am.  Dec.  63. 

29  Reedie  v.  Railway  Co.,  4  Exch.  244;   Harrison  v.  Collins,  86  Pa.  153,  27 

so  86  Pa.  153,  27  Am.  Rep.  699. 


654  MASTER  AND   SERVANT  (Ch.  16 

the  defendants,  owners  of  a  sugar  refinery,  had  employed  a  rigger 
to  remove  machinery  from  a  railroad  car  to  their  refinery.  In 
doing  the  work  he  opened  a  coal  hole  in  the  sidewalk,  and  left  it 
open  a  few  minutes  after  finishing  the  work,  and  a  child  fell  into 
it  and  was  injured.  It  appeared  that  the  defendants  neither  direct- 
ed nor  interfered  with  the  manner  of  the  work,  and  it  was  there- 
for held  that,  as  the  rigger  was  an  independent  contractor,  they 
were  not  liable  for  the  injury.  On  the  same  principle,  it  has  been 
held  that  one  who  employs  a  public,  licensed  drayman  to  haul  a  lot 
of  barrels  of  goods  is  not  liable  for  injuries  inflicted  by  the  latter 
by  rolling  a  barrel  against  a  person.31  And  the  owner  of  land,  who 
employs  an  independent  contractor  to  erect  or  repair  a  building  on 
his  lot,  is  not  liable  for  injuries  resulting  from  the  contractor's  de- 
posit of  planks  in  the  highway,  or  other  negligence  on  the  part  of 
the  contractor  or  his  servants.82 

If  the  work  contracted  for  is  unlawful,  as  where  it  naturally  con- 
stitutes or  creates  a  public  nuisance,  then  the  rule  exempting  the 
employer  does  not  apply,  but  both  the  employer  and  the  contractor 
are  liable  for  injuries  resulting  therefrom.88  Thus,  if  a  person  who 
is  not  authorized  to  excavate  in  a  highway  employs  a  contractor  to 
do  so,  he  is  liable  for  injuries  inflicted  by  the  contractor  in  doing 
the  work,  though  he  would  not  be  so  liable  if  he  had  first  obtained  a 
license  to  excavate.34 

Nor  does  the  rule  apply  where  a  public  duty  is  imposed  by  law 
upon  a  public  officer  or  public  body,  and  the  officer  or  body  charged 

Am.  Rep.  699 ;  Cuff  v.  Railroad  Co.,  35  N.  J.  Law,  17,  10  ATP.  Rep.  205 ;  Hil- 
liard  v.  Richardson,  3  Gray  (Mass.)  349,  63  Am.  Dec.  743;  King  v.  Rail- 
road Co.,  66  N.  X.  181,  23  Am.  Rep.  37 ;  Bhxke  v.  Ferris,  5  N.  Y.  48,  55  Am. 
Dec.  304;  Stevens  v.  Armstrong,  6  N.  Y.  435;  Hexamer  v.  Webb,  101  N. 
Y.  377,  4  N.  E.  755,  54  Am.  Rep.  703 ;  Eaton  v.  Railway  Co.,  59  Me.  520,  8 
Am.  Rep.  430;  De  Forrest  v.  Wright,  2  Mich.  368;  Clark  v.  Railroad  Co., 
28  Vt  103 ;  Bennett  v.  Truebody,  66  Cal.  509,  6  Pac.  329,  56  Am,  Rep.  117. 

si  De  Forrest  v.  Wright,  2  Mich.  368. 

sz  Milliard  v.  Richardson,  3  Gray  (Mass.)  349,  63  Am.  Dec.  743*  McCarthy 
v.  Second  Parish,  71  Me.  318,  36  Am.  Rep.  320 ;  Forsyth  v.  Hooper,  11  Allen 
(Mass.)  419 ;  Pearson  v.  Cox,  2  C.  P.  Div.  369. 

ssCongreve  v.  Smith,  18  N.  Y.  79;  Creed  v.  Hartmann,  29  N.  Y.  591,  86 
Am.  Dec.  341;  Falender  v.  Blackwell,  39  Indi  App.  121,  79  N.  E.  393; 
McHarge  v.  M.  M.  Newcomer  &  Co.,  117  Tenn.  595s  100  S.  W.  700,  9  L.  R.  A. 
(N.  S.)  298. 

s  *  Creed  v.  Hartmann,  29  N.  Y.  591,  86  Am.  Dec.  341.  But  if  the  inde- 
pendent contractor  is  himself  guilty  of  the  unlawful  act,  without  the  knowl- 
edge or  authority  of  the  employer,  the  latter  is  not  liable.  Symons  v.  Road 
Directors  for  Allegany  County,  105  Md.  254,  65  AtL  1067. 


§§  280-281)     SERVANT'S  LIABILITY  TO  THIRD  PERSONS  655 

with  the  duty  commits  its  performance  to  another.  For  instance, 
a  municipal  corporation  charged  by  statute  with  the  duty  to  keep 
the  streets  in  repair  cannot  escape  liability  for  a  negligent  perform- 
ance of  this  duty  on  the  ground  that  the  immediate  negligence  was 
that  of  a  contractor  who  had  be«n  intrusted  with  its  performance.85 


SERVANT'S  LIABILITY  TO  THIRD  PERSONS 

280.  A  servant  is  not  personally  liable  to  third  persons  on  contracts 

made  by  him  in  the  name  or  on  behalf  of  the  master,  unless 
he  failed  to  disclose  the  existence  of  his  principal,  or  con- 
tracted without  authority. 

281.  A  servant  is  ordinarily  personally  liable  to  third  persons  for 

torts  committed  by  him,  though  committed  by  his  master's 
direction.  But  he  is  not  liable  to  third  persons  for  mere 
nonfeasance. 

Ordinarily  a  servant  is  not  personally  liable  on  authorized  con- 
tracts entered  into  by  him  in  the  name  of  his  master,  or  on  his 
behalf.86  It  is  otherwise  if  he  contracts  without  disclosing  either 
his  agency,87  or  if  he  exceeds  his  authority.38  The  liability  depends 
upon  principles  of  the  law  of  agency,  and  is  not  different  from  the 
liability  of  any  other  agent. 

A  servant  is  liable  for  criminal  acts  committed  by  Him,  though 
his  master  may  have  commanded  him  to  commit  them.  In  such  a 
case  both  would  be  liable.  In  like  manner  a  servant,  as  well  as  the 
master,  is  civilly  liable  for  a  tort  committed  by  the  servant  by 
the  master's  command.  "Although  there  are  some  cases  which  fa- 
vor the  idea  that  a  servant  is  not  liable  for  a  wrong  act,  when  done 
by  order  of  his  master,  these  cases,  I  apprehend,  are  not  law.  The 
idea  that  a  command  by  a  superior  is  to  be  admitted  as  a  justifica- 
tion for  an  injury  is  admissible  only  in  the  case  of  a  wife  who  does 

s  B  King  v.  Railroad  Co.,  66  N.  Y.  181,  23  Am.  Rep.  37;  Storrs  v.  City  of 
Utica,  17  N.  Y.  104,  72  Am.  Dec.  437. 

s«  Clark,  Cont.  737;  Jefts  v.  York,  4  Cush.  (Mass.)  371,  50  Am.  Dec.  791; 
Bailey  v.  Cornell,  66  Mich.  107,  33  N.  W.  50. 

ST  Clark,  Cont.  740,  742,  and  cases  there  cited ;  Kay  ton  v.  Barnett,  116  N. 
Y.  625,  23  N.  E.  24;  Holt  v.  Ross,  54  N.  Y.  472,  13  Am  Rep.  615;  Wheeler 
v.  Reed,  36  111.  81 ;  Porter  v.  Day,  44  111.  App.  256 ;  Hubbard  v.  Ten  Brook, 
124  Pa.  291,  16  Atl.  817,  2  L.  R.  A.  823,  10  Am.  St.  Rep.  585;  Welch  v.  Good- 
win, 123  Mass.  71,  25  Am.  Rep.  24. 

ss  Clark,  Cont.  738,  and  cases  there  cited* 


656  MASTER  AND   SERVANT  (Ch.  16 

an  injury  by  the  command  and  in  the  company  of  her  husband.  A 
servant  is  bound  to  perform  the  lawful  commands  of  his  master,  but 
not  those  which  are  unlawful.  Such  a  principle  would  justify  a 
servant  in  committing  any  crime.  Even  if  the  servant  be  ignorant 
that  he  is  committing  any  injury,  yet,  if  the  thing  done  is  an  injury, 
he  is  liable,  though  done  by  the  command  of  the  master."  »•  The 
servant  is  not  personally  liable  to  third  persons  for  mere  nonfea- 
sance.  In  such  a  case  he  is  liable  to  the  master,  and  the  master 
alone  is  liable  to  third  persons.40  But  for  negligence,  as  distin- 
guished from  mere  nonfeasance,  the  servant  is  personally  liable.41 

s»  Reeve,  Dom.  Kel.  (4th  Ed.)  455. 

<o  Delaney  v.  Rochereau,  34  La.  Ann.  1123,  44  Am.  Rep.  456;  Scheller  v. 
Silbermintz,  50  Misc.  Rep.  175,  98  N.  Y.  Supp.  230;  McGinnis  v.  Chicago,  R. 
I.  &  P.  Ry.  Co.,  200  Mo.  347,  98  S.  W.  590,  9  L.  R.  A.  (N.  S.)  880,  118  Am.  St. 
Rep.  661,  9  Ann.  Cas.  656;  Carey  v.  Rochereau  (C.  C.)  16  Fed.  87;  Albro  v. 
Jaquith,  4  Gray  (Mass.)  99,  64  Am.  Dec.  56.  But  this  case  was  afterwards 
overruled  in  Osborne  v.  Morgan,  130  Mass.  102,  39  Am.  Rep.  437,  on  the  ground 
that  the  facts  did  not  bring  it  within  the  principle.  The  principle  itself,  how- 
ever, was  conceded  in  the  latter  case. 

«  Osborne  v.  Morgan,  130  Mass.  102,  39  Am.  Rep.  437.  It  was  held  in  this 
case,  overruling  Albro  v.  Jaquith,  4  Gray  (Mass.)  99,  64  Am.  Dec.  56,  that  a 
servant  is  personally  liable  to  a  third  person  for  negligence  in  so  placing  ap- 
pliances as  to  cause  injury  to  him.  The  case  overruled  had  erroneously  held 
that  a  servant  was  not  liable  for  unskillfully  and  negligently  allowing  in- 
flammable gas  to  escape.  In  Osborne  v.  Morgan,  the  court,  by  Gray,  C.  J., 
said :  "It  is  often  said  in  the  books  that  an  agent  is  responsible  to  third  per- 
sons for  misfeasance* only,  and  not  for  nonfeasance.  And  it  is  doubtless  true 
that  if  an  agent  never  does  anything  towards  carrying  out  his  contract  with 
his  principal,  but  wholly  omits  and  neglects  to  do  so,  the  principal  Is  the  only 
person  who  can  maintain  any  action  against  him  for  the  nonfeasance.  But,  if 
the  agent  once  actually  undertakes  and  enters  upon  the  execution  of  a  par- 
ticular work,  it  is  his  duty  to  use  reasonable  care  in  the  manner  of  execut- 
ing it,  so  as  not  to  cause  any  injury  to  third  persons  which  may  be  the  natural 
consequence  of  his  acts;  and  he  cannot,  by  abandoning  its  execution  mid- 
way, and  leaving  things  in  a  dangerous  condition  exempt  himself  from  lia- 
bility to  any  person  who  suffers  injury  by  reason  of  his  having  so  left  them 
without  proper  safeguards.  This  is  not  nonfeasance;  but  it  is  misfeasance, 
doing  improperly."  And  see  Parsons  v.  Winchell,  5  Cush.  (Mass.)  592,  52  Am. 
Dec.  745;  Bell  v.  Josselyn,  3  Gray  (Mass.)  309,  63  Am.  Dec.  741;  Nowell  v. 
Wright,  3  Allen  (Mass.)  166,  80  Am.  Dec.  62;  Homer  v.  Lawrence,  37  N.  J. 
Law,  46;  Hinds  v^Overacker,  66  Ind.  547,  32  Am.  Rep.  114;  Mayberry  v. 
Northern  Pac.  Ry.  Co.,  100  Minn.  79,  110  N.  W.  356,  12  L.  R.  A.  (N.  S.)  675, 
10  Ann.  Cas.  754 ;  Southern  Ry.  Co.  v.  Reynolds,  126  Ga.  657,  55  S.  E.  1039 ; 
Whalen  v.  Pennsylvania  R.  Co.,  73  N.  J.  Law,  192,  63  A.tl.  993;  McGinnis  v. 
Chicago,  R,  I.  &  P.  Ry.  Co.,  200  Mo.  347,  98  S.  W.  590.  9  L.  R,  A.  (N.  S.)  880, 
118  Am.  St.  Rep.  661,  9  Ann.  Cas.  656 ;  Scheller  v.  Silbermintz,  50  Misc.  Rep. 
175,  98  N.  Y.  Supp.  230. 


TABLE  OF  CASES  CITED 


[THE  FIGTTBES  EEFEB  TO  PAGES] 


A  v.  B,  30. 

A.  Alschuler  &  Sons  v.  Anderson,  332. 
Aaron  v.  Harley,  482. 
Abbe  v.  Abbe,  105. 
Abbot  v.  Bayley,  158. 
Abbott  v.  Abbott,  80,  105,  106. 
Abbott  v.  Converse,  334,  359,  360,  363, 

364,  388. 

Abbott  v.  Creal,  542. 
Abbott  v.  Fidelity  Trust  Co.,  233. 
Abbott  v.  Hancock,  384. 
Abel  v.  Canal  Co.,  612. 
Abies  v.  Abies,  140. 
Abney  v.  De  Loach,  313. 
Aborn  v.  Janis,  412,  492. 
Abrahams   v.   Kidney,   376,   380,   383, 

384. 
Abrams  v.  U.  S.  Fidelity  &  Guaranty 

Co.,  413,  428. 

Achilles  v.  Achilles,  223,  224,  225. 
Acken's  Estate,  In  re,  388. 
Ackerman  v.  Ackerman,  243,  245,  246, 

248. 

Ackerman  v.  Hawkins,  508. 
Ackermann  v.  Haumueller,  444. 
Ackliu  Stamping  Co.  v.  Kutz,  639. 
Adair  v.  Arendt,  83,  160. 
Adair  v.  Shaw,  423. 
Adams'  Appeal,  404. 
Adams  v.  Adams,  227,  240,  241,  244, 

264,  284,  288,  301,  304,  316,  350. 
Adams   v.   Beall,   475,   479,   492,  493, 

514. 

Adams  v.  De  Dominques,  469. 
Adams  v.  Dickson,  216. 
Adams  v.  Fitzpatrick,  577. 
Adams  v.   Gleaves,   445. 
Adams  v.  Iron  Cliffs  Co.,  631,  632. 
Adams  v.  Lain,  119. 
Adams  v.  McKay,  305. 
Adams  r.  Mackey,  191. 
Adams  v.  Main,  114,  119,  120. 
Adams  v.  Merrill,  316. 
Adams  v.  Palmer,  3,  5. 


Adams  v.  Scott,  18,  19. 

Adams  v.  State,  94. 

Adams  v.   Swift,  227. 

Adams  v.  Wm.  Cameron  &  Co.,  61. 

Adams'  Estate,  In  re,  216,  219,  280, 

301. 

Adams  Paper  Co.  v.  Cassard,  205. 
Adams  &  Burke  Co.  v.  Cook,  360. 
Addicks  v.  Christoph,  613. 
Ades  v.  Caplin,  147,  148. 
Adger  v.  Ackerman,  51,  53,  62. 
Adoue  v.  Spencer,  199. 
Adye  v.  Feuilleteau,  432. 
^Etna  Indemnity  Co.  v.  State,  458. 
vEtna  Ins.  Co.  v.  Resh,  148. 
JEtna.  Life  Ins.  Co.  v.  Nexsen,  598. 
Affick's  Estate,  In  re,  417. 
Agnew,  Appeal  of,  240. 
Ago  v.   Canner,  202. 
Agresta  v.  Stevenson,  625. 
Aguilar  v.  Lavaro,  57. 
Ahrenfeldt  v.  Ahrenfeldt,  263. 
Ahrens  v.  Ahrens,  326,  564,  566. 
Ainger  v.  White's  Adm'x,  193. 
Ainslie  v.   Martin,  561. 
Akin  v.  Thompson,  159. 
Albany  Fire  Ins.  Co.  v.  Bay,  165. 
Albee  v.  Albee,  89,  264. 
Albee  v.  Carpenter,  133. 
Albert  v.  Perry,  404. 
Albin  v.  Lord,  205. 
Albright  v.  Albright,  201. 
Albring  v.  Ward,  310. 
Albro  v.  Jaquith,  656. 
Alcon  v.  Koons,  443. 
Aldrich  v.  Bennett,  360. 
Aldrich.  v.  Grimes,  500. 
Aldrich  v.  Steen,  19. 
Aldridge,  Ex  parte,  261,  263. 
Aldridge  v.  Aldridge,  64. 
Alexander,  In   re,  403.   410. 
Alexander  v.  Alexander,  196,  197,  430. 
Alexander  v..  Buffington,  436. 
Alexander  v.  Crittenden,  134. 
Alexander  v.  Hard,  141. 


TIFF.P.&  D.REL.(3o  ED.)— 42        (657) 


658 


CASES  CITED 
[The  figures  refer  to  pages] 


Alexander  v.  Morgan,  184. 

Alexander  v.   Shalala,  234. 

Alexander's  Adm'r  v..  Alexander,  308. 

Alexander's  Estate,  In  re,  447. 

Alexier  v.  Matzke,  532. 

Alferitz  v.  Arrivillaga,  234. 

Alford  v.  Cook,  605,  606. 

Alford  v.  State,  557. 

Alfrey  v.  Colbert,  510,  512. 

Alger  v.  Lowell,  557. 

Alixanian  v.  Alixanian,  33. 

Allard,  In  re,  454. 

Allard's  Guardianship,  In  re,  421,  446. 

Allcock  v.  Allcock,  117. 

Allen,  Appeal  of,  12. 

Allen,  Ex  parte,  536. 

Allen  v.  Allen,  11,  137,  148,  151,  354, 

577. 

Allen  v.  Anderson  &  Anderson,  503. 
Allen  v.  Berryhill,  540,  544. 
Allen  v.   Burlington.   C.  R.  &  N.   R. 

Co.,   612. 

Allen  v.  Crosland,  457. 
Allen   v.   Gaillard,   433. 
Allen  v.  Hall,  50. 
Allen  v.  Hanks,  196,  197.* 
Allen  v.  Jacobi,  324. 
Allen  v.   Maronne,   597. 
Allen  v.  Mutual  Compress  Co.,  582. 
Allen  v.  National  Bank  of  Tifton,  211. 
Allen  v.  Poole,  503,  506. 
Allen  v.   Tiffany,  458. 
Allen  v.  Whitlark,  597. 
Allen's  Estate,  In  re,  398,  403. 
Alles  v.  Lyon,  148. 
Alley  v.  Winn,  173,  179. 
Allfrey  v.  Allfrey,  447. 
Ailing  v.  Ailing,  331. 
Allis  v.  Billings,  539,  544. 
Allison  v.  Bryan,  316. 
Allman  v.  Owen,  444. 
Almond   v.   Almond,   60. 
Almond  v.  Bonnell,  196,  197. 
Almy  v.  Wilcox,  177. 
Alpaugh  v.  Wood,  602. 
Alsberry  v.   Hawkins,   561. 
Alschuler  &  Sons  v.  Anderson,  332. 
Alsdurf  v.  Williams,  209. 
Alston  y.   Alston,  396,  401. 
Alston  v.  Boyd,  539. 
Alston  v.  Munford,  444. 
Alsworth  v.  Cordtz,  475. 
Althen  v.  Tarbox,  166. 
Althorf  v.  Wolfe,  652. 
Altman  &  Co.  v.  Durland,  173,  175. 
Alvey  v.  Hartwig,  325,  327. 
Ambrose,  In  re,  39. 
Ambrose  v.  Kerrison,  182. 
Amend  y.  Jahns,  152. 


American  Bible  Soc.  v.  Price,  552. 
American  Bonding  Co.  v.  People,  444, 

457. 
American  Brake  Shoe  &  Foundry  Co. 

v.  Hank,  619. 
American  Brake  Shoe  &  Foundry  Co. 

v.   Jankus,  620. 
American  Brake  Shoe  &  Foundry  Co. 

v.  Toluszis,  613. 
American   Bridge  Co.   v.   Seeds,   614, 

629. 
American     Car    &    Foundry    Co.     v. 

Adams,  630. 
American   China  Development  Co.  v. 

Boyd,  597. 

American  Circular  Loom  Co.  v.  Wil- 
son, 603. 

American  Ice  Co.  v.  Fitzhugh,  635. 
American  Mill  Co.  v.  Industrial  Board 

of  111.,  81,  82. 
American   Mortg.   Co.   of   Scotland  v. 

Wright,  499,  500,  505. 
American    Seamen's    Friend    Soc.    v. 

Hopper,  553. 
American  Smelting  &  Refining  Co.  v. 

MeGee,  618. 

American  Stay  Co.  v.  Delaney,  603. 
American  Steel  &  Wire  Co.  v.  Tynon, 

376. 
American    Surety    Co.    v.    Sandberg, 

154,   431. 

American  Tobacco  Co.  v.  Polisco,  521. 
Americus  Gas  &  Electric  Co.  v.  Col- 
man,  23,  61. 
Ames  v.  R.  Co.,  643. 
Amick  v.  O*Hara,  546. 
Ammons  v.  People,  458. 
Amos  v.   American  Trust  &   Savings 

Bank,  533,  539. 
Amos  v.  Atlanta  Ry.  Co.,  370. 
Amspoker  v.  Amspoker,  239. 
Anders  v.  Anders,  10. 
Anderspn   v.   Anderson,   13,   108,   133, 

197,  278,  279. 
Anderson   v.   Anderson's   Estate,   417, 

536. 

Anderson  v.  Aupperle,  382,  384. 
Anderson  v.  Blakesly,  313,  319. 
Anderson  v.  Citizens'  Nat  Bank,  161. 
Anderson  v.  French,  320. 
Anderson  v.  Great  Northern  R.   Co., 

612. 

Anderson  v.  Hicks,  556. 
Anderson  v.  Lumber  Co.,  617. 
Anderson  v.  Lunker,  331. 
Anderson   v.   Milliken   Bros,,   616. 
Anderson  v.  R.  Co.,  618. 
Anderson  v.  Silcox,  446. 
Anderson  v.  Smith,  184. 


CASES  CITED 
[The  figures  refer  to  pages] 


659 


Anderson  v.  Soward,  505. 
Anderson  v.  State,  340,  343. 
Anderson  v.  Thomas,  458. 
Anderson's  Adm'r  v.  Smith,  401. 
Andrade  v.  Andrade,  258. 
Andrecski  v.   New   Jersey   Tube   Co., 

620. 

Andress  v.  Weller,  559.' 
Andrews,  In  re,  343,  408. 
Andrews  v.  Andrews,  3,  4,  6,  244. 
Andrews  v.  Boedecker,  647. 
Andrews  v.   Green,   646. 
Andrews  v.   Jones,  216,  221. 
Andrews  v.  Page,  61. 
Andricus'  Adm'r  v.  Pineville  Coal  Co., 

574. 

Andrino  v.   Yates,  403. 
Auest  v.  Columbia  &  P.  S.  R.  Co.,  621, 

634. 

Angelo  v.  People,  529,  530. 
Anglo-Californian  Bank  v.  Ames,  542, 

546. 

Anichini  v.  Anichini,  273,  286. 
Ankeney  v.  Hannon,  211. 
Annin  v.  Annin,  236. 
Anonymous,  11,  18,  29,  30,  59,  60,  90, 

91,  243,  250,  271,  280,  281,  312,  349, 

409,  461. 

Anonymous  v.  Anonymous,  29. 
Anthony  v.  Norton,  382,  384. 
Antioch  Coal  Co.  v.»  Rockey,  616. 
Anvil  Min.  Co.  v.  Humble,  582. 
Appell  v.   Appell,  475. 
Appleby  v.  Appleby,  216,  217,  219. 
Applegate  v.  Applegate,  32,  43. 
Appleton  v.  Warner,  34. 
Appleton  Waterworks  Co.  v.  City  of 

Appleton,  577. 
Arado  v.  Arado,  28. 
Archbell  v.  Archbell,  239,  241. 
Archer  v.  Hudson,  389. 
Archer-Foster   Const   Co.  v.  Vaughn, 

624. 

Arends  v.  Grand  Rapids  Ry.  Co.,  635. 
Arizona    Eastern    R.   Co.    v.    Carillo, 

506. 

Arment  v.  Arment,  262. 
Armitage  v.  Snowden,  423. 
Armitage  v.  Widoe,  473,  493. 
Armour-Cudahy  Packing  Co.  v.  Hart, 

589. 
Armour  &   Co.   v.   Russell,   607,    608, 

609. 
Armstrong    v.    Armstrong,    125,    130, 

273,   281. 

Armstrong  v.  McDpnald,  362. 
Armstrong  v.  Ross,  188. 
Armstrong  v.  Simonton's  Adm'r,  129. 
Armstrong  v.  Stone,  347,  349. 


Armstrong  v.  Wilcox,  466. 
Armstrong  Clothing  Co.  v.  Boggs,  332. 
Armstrong's    Heirs    v.    Walkup,    409, 

414,    431,   451. 
Arndt-Ober     v.    Metropolitan     Opera 

Co.,  567. 

Arnold  v.  Arnold,  270. 
Arnold  v.  Keil,  85. 
Arnold  v.  Limeburger,  132,  133,  140, 

196. 

Arnold  v.  McBride,  206. 
Arnold  v.  Richmond  Iron  Works,  540, 
I-    544. 

Arnold  v.  Whitcomb,  538. 
Aronson  v.  Ricker,  102. 
Arrington  v.  Arrington,  246. 
Arrington  v.  Yarborough,  133. 
Arrowsmith  v.  Harmoning,  439. 
Arthur  v.  Broadnax,  50,  158. 
Arthur  v.  Oakes,  599. 
Arthur  Lehman  &  Co.  v.  Slat,  201. 
Arthurs,   Appeal  of,  405,  450. 
Arundell  v.  Phipps,  231. 
Asberry's  Adm'r  v.  Asberry's  Adm'r, 

424. 
Ashbey  v.   Elsberry  &  N.   H.   Gravel 

Road  Co.,  110. 
Asher  v.  Bennett,  492. 
Ashfield  v.  Ashfleld,  502. 
Ashmead  v.  Reynolds,  544. 
Ashton  v.  Thompson,  449. 
Ashworth  v.  Outram,  162,  163. 
Askew  v.  Dupree,  39,  42,  44,  48. 
Askey  v.  Williams,  482,  487. 
Aspinwall  v.  Aspinwall,  241. 
Astley  v.  Astley,  284. 
Atherton  v.   Atherton,   246,  252,   278, 

287,  291. 
Atkin  v.  Acton,  589. 
Atkins  v.  Sherbino,  362,  363. 
Atkyns  v.  Pearce,  175. 
Atlantic  Coast  Lone  R.  Co.  v.  Beazley, 

628,  630. 

Atlantic  Compress  Co.  v.  Young,  592. 
Atoka   Coal  &   Mining  Co.   v.  Miller, 

607,  615,  622. 
Atteberry  v.  Burnett,  201. 
Attorney  General  v.  Parnther,  553. 
Attrill  v.  Patterson,  583. 
Atwood  v.  Holcomb,  357,  359,  360,  361, 

363,  364,  365. 
Aughtie  v.  Aughtie,  58. 
Auld  v.  Auld,  279. 
Auringer  v.  Cochrane,  171,  332. 
Austen  v.  Cox,  104.  • 
Austin  v.  Austin,  361. 
Austin  v.  Trustees,  470,  496. 
Avakian  v.  Avakian,  17,  60. 
Avery  v.   Vansiekle,  191, 


660 


CASES  CITED 
[The  figures  refer  to  pages] 


Avery  v.  Wilson,  547. 

Aycock  v.  Hampton,  305. 

Ayer  v.  Warren,  158. 

Ayer  &  Lord  Tie  Co.  v.  Witherspoon's 

Adm'r,  438. 

Aylesford  Peerage,  Case  of,  299. 
Aylor  v.  Aylor,  391. 
Aymar  v.  Roff,  22. 
Azbill  v.  Azbill,  164. 


B 

Babb  v.  Perley,  141,  142. 

Babcock  v.  Railway  Co.,  627. 

Babcock  Lumber  &  Land  Co.  r.  Fer- 
guson, 466. 

Babcock  &  Wilcox  Co.  v.  Moore,  584. 

Babin  v.  Le  Blanc,  70. 

Bachelor  v.  Korb,  439. 

Bachman  v.  Waterman,  641. 

Bacon  v.  Bacon,  5,  258,  264. 

Badenhoof  v.  Johnson,  404. 

Badger  v.  Phinney,  507,  508,  510,  515, 
527. 

Badgley  v.  Heald,  604. 

Baggett  v.  Jackson,  494. 

Bagley  v.  Fletcher,  50ft. 

Bahn  v.  Bahn,  253. 

Bailey  v.  Apperson,  230. 

Bailey  v.  Bailey,  115,  120,  251,  255, 
257,  263. 

Bailey  v.  Barnberger,  514. 

Bailey  v.  Chesley,  307. 

Bailey  v.  College  of  Sacred  Heart, 
377. 

Bailey  v.  Cornell,  655. 

Bailey  v.  Fink,  205,  207. 

Bailey  v.  Fiske,  31. 

Bailey  v.  Gaston,  352. 

Bailey  v.  Kennedy,  114. 

Bailey  v.  Long,  111. 

Bailey  v.  Rogers,  458. 

Bailey  v.  State,  44. 

Bailey  v.  Swallow,  624,  626. 

Baillie  v.  Kell,  593. 

Bain  v.  Bain,  268. 

Bain  v.  Buff's  Adm'r,  188,  190. 

Bainbridge  v.  Pickering,  486. 

Baird  v.  Carle,  118. 

Baity  v.  Cranfill,  61. 

Baker,  Appeal  of,  431. 

Baker  v.  Baker,  12,  19,  120,  355. 

Baker  v.  Barney,  178. 

Baker  v.  Bolton,  112. 

Baker   v.   Braslin,   96,   98. 

Baker  v.  Cureton,  407. 

Baker  v.  Haldeman,  335. 

Baker  v.  Hall,  133. 


Baker  v.  Hathaway,  206. 

Baker  v.  Jewel  Tea  Co.,  128, 

Baker  v.  Johnson,  593. 

Baker  v.  Kennett,  492,  499. 

Baker  v.  Lauterbach,  580, 

Baker  v.  Lorillard,  437. 

Baker  v.  Lovett,  476. 

Baker  v.  Lukens,  184. 

Baker  v.  Oughton,  176. 

Baker  v.  Owensboro  Savings  Bank  & 

Trust  Co.'s  Receiver,  161. 
Baker  v.  Pierce,  432. 
Baker   v.    Portland,   563. 
Baker  v.  Saxon,  151. 
Baker  v.  Stone,  528. 
Baker  v.  Strahorn,  312. 
Baker  v.  Syfritt,  234. 
Baker  v.  Thompson,  160. 
Baker  v.  Young,  96. 
Baker's  Ex'rs  v.  Kilgore,  196,  197. 
Balch  v.  Smith,  398,  399. 
Baldridge  v.   State,  454. 
Baldwin  v.  American  Writing  Paper 

Co.,  621. 

Baldwin  v.  Carter,  139,  216,  217,  222. 
Baldwin  v.  Dunton,  538 
Baldwin  v.  State,  328. 
Baldwin's  Estate.  In  re,  49,  51,  52. 
Ball  v.  Bennett.  96.  97. 
Ball  v.  Bruce,  376,  384. 
Ball  v.  Cross,  291.- 
Ball  v.  Lovett,  172,  173. 
Ball  v,  Mannin,  538. 
Ball  v.  Mining  Co.,  593. 
Ball  v.  Montgomery,  137. 
Ball  &  Sheppard  v.  Paquin.  205. 
Ballantine  v.  Proudfoot,  553. 
Ballard  v.  St.  Albans  Advertiser  Co., 

356. 

Ballin  v.  Dillaye,  212. 
Ballinger  v.  Rader,  337,  546. 
Balster  v.  Cadick,  233. 
Balthaser  Appeal  of,  426,  427,  428. 
Baltimore  Baseball  Club  &  Exhibition 

Co.  v.  Pickett,  583,  589. 
Baltimore  &  O.  R.  Co.  v.  Baugh,  626, 

628,  631. 
Baltimore  &   O.    R.    Co.   v.    Branson, 

621,  634. 
Baltimore  &  O.  R^  Co.  v.  Fitzpatrick, 

468. 

Baltimore  &  O.  R.  Co.  v.  State,  523. 
B.  Altman  &  Co.  v.  Durland,  173,  175. 
Banbury  Peerage,  Case  of,  296,  297. 
Bancroft  v.  Bancroft,  283. 
Bankard  v.  Shaw,  208. 
Banker  v.  Banker,  19. 
Bank  of  Commerce  v.  Baldwin,  161, 

205. 


CASES  CITED 
[The  figures  refer  to  pages] 


661 


Bank  of  Greensboro  v.  Chambers,  188, 

217. 
Bank  of  New  Orleans  v.  Matthews, 

568. 

Bank  of  Nez  Perce  v.  Pindel,  151. 
Banks  v.'  Conant,  355,  386. 
Banks  v.  Galbraith,  55. 
Banks  v.  Goodfellow,  554. 
Banks  v.  Schofield's  Sons  Co.,  618. 
Banks'  Adm'rs  v.  Marksberry,  130. 
Banner  v.  Banner,  241. 
Banner  Mercantile  Co.  v.  Hendricks, 

84,  85. 

Bantz  v.  Bantz,  389,  577. 
Barbee  v.  Annstead,  113. 
Barber,  In  re,  554. 
Barber  v.  Barber,  79,  244,  290. 
Barber  v.  Graves,  470. 
Barber  v.  Harris,  141,  148. 
Barber  v.  Keeling,  104,  160. 
Barber  v.  People,  20,  21,  62. 
Barber  v.  Root,  141,  288. 
Barber  v.  Slade,  133,  142. 
Barbour  v.  Stephenson,  381. 
Barclay  v.  Com.,  8. 
Bardwell   v.    Purrington,    461,   572. 
Bare  v.  Crane  Creek  Coal  &  Coke  Co., 

615. 

Barefoot  v.  Barefoot,  81. 
Bargna  v.  Bargna,  44. 
Barhite's  Appeal,  577. 
Barker  v.  Barker,  32,  40. 
Barker  v.  Boyd,  459. 
Barker  v.  Dayton,  176. 
Barker  v.  Fuestal,  495. 
Barker  v.  Hibbard,  487. 
Barker  v.  State,  90. 
Barker  v.  Valentine,  51. 
Barkley  v.  Barkley,  541. 
Barkshire  v.   State,  2. 
Barlee  v.  Barlee,  253. 
Barlow  v.  Barnes,  121. 
Barnaby  v.  Barnaby,  476. 
Barnes  v.  Allen,  115,  316. 
Barnes   v.   American   Soda   Fountain 

Co.,  498. 
Barnes  v.   Barnes,  64,  240,  252,  253, 

255,  276,  483. 

Barnes  v.  Martin,  111,  112. 
Barnes   v.    Toye,   486. 
Barnes  v.  Underwood,  183,  184. 
Barnett  v.  Barnett  257,  258,  260. 
Barnett  v.  Bull,  439. 
Barnett  v.  Leonard,  109. 
Barney  v.  Hutchinson,  319. 
Barney    v.    Parsons'    Guardian,    422, 

426. 

Barney  v.  Saunders,  425,  431,  432. 
Barnhizel  v.  Ferrell,  312. 


Barnsback  v.  Dewey,  406,  407. 
Barnum  v.  Frost's  Adm'r,  411. 
Barr  v.  Armstrong,  175. 
Barr  v.  Packard  Motor  Car  Co.,  512. 
Barr  v.  Simpson,  151. 
Barrack  v.  McCulloch,  187. 
Barrere  v.  Barrere,  244,  252. 
Barrett  v.  Buxton,  555. 
Barrett  v.  Provincher,  451. 
Barringer  v.  Dauernheim,  242. 
Barron  v.  Barren,  133,  229,  230,  232. 
Barren  v.  Zimmerman,  309. 
Barrow  v.  Dugan's  Estate,  160. 
Barry  v.  St.  Louis,  653. 
Bartholomew  v.  Allentown  Nat  Bank, 

159,  212. 

Bartholomew  v.  Dighton,  468. 
Bartholomew  v.  Jackson,  575,  576. 
Bartholow  v.  Davies,  312. 
Bartlett,  Ex  parte,  417. 
Bartlett  v.  Batts,  468,  469. 
Bartlett  v.  Cowles,  451,  508. 
Bartley   v.   Richtmyer,   370,  376,  380, 

383,  384,  410. 

Barton  v.  Barton,  117,  202. 
Barton  v.  Beer,  164. 
Barton  v.  Bowen,  416. 
Barton's  Lessee  v.  Morris'  Heirs,  14. 
Barwick  v.  Miller,  307. 
Barwick  v.  Rackley,  307,  468. 
Bascomb  v.  Bascomb,  29.        • 
Basford  v.  Pearson,  205,  206. 
Basham  v.  Chicago  &  G.  W.  Ry.  Co., 

634. 

Bashaw  v.  State,  37,  39,  41. 
Baskette  v.  Streight,  312. 
Easier  v.  Sacremento  Gas  &  Electric 

Co.,  109. 

Bass  v.  Cook,  409. 
Bass  Furnace  Co.  v.  Glasscock,  589. 
Basse  v.  Allen,  583. 
Bassett  v.  Bassett,  13,  14,  56,  60,  120. 
Bassi  v.  Orth,  651. 
Rassler  v.  Rewodlinski,  149. 
Bast  v.  Bast,  283. 
Bast  v.  Byrne,  592. 
Batchelder  v.  Sargent,  205,  209. 
Batcheller-Durkee  v.   Batcheller,  317 
Bateman  v.   Cherokee  Fertilizer   Co., 

207. 

Bates  v.  Ball,  555. 
Bates  v.  Capital  State  Bank,  201. 
Bates  v.  Dandy,  134. 
Bates  v.  Meade,  301. 
Bates  v.  Papesh,  160. 
Bates  v.   Seely,  146,  148. 
Bates  v.  Sgraeder,  142. 
Battighill  v.  Humphreys,  523. 
Battle  v.  Vick,  403. 


662 


CASES  CITED 
[The  figures  refer  to  pages) 


Batts,  In  re,  641. 

Batty  v.  Greene,  10. 

Bauder's  Appeal,  258. 

Bauer  v.  Ambs,  210. 

Bauer  v.  Bauer,  83. 

Baugh,  Case  of,  631. 

Baughman  v.  Baughman,  270. 

Baulec  v.  R,  Co.,  611. 

Baum,  In  re,  147. 

Baum  v.  Greemvald,  534,  536. 

Baum  v.  Hartmann,  447,  457. 

Baum  v.  Mullen,  101,  103,  104. 

Bauman  v.  Cowdin,  607. 

Baurens,  In  re,  89. 

Baxter  v.  Bush,  524. 

Baxter  v.  Roberts,  613. 

Bayles  v.  Burgard,  383. 

Baylls  v.  Baylis,  295. 

Baylis  v.  Dineley,  473. 

Bay  Shore  R.  Co.  v.  Harris,  521. 

Bay  State  St.  Ry.  Co.  v.  Rust,  638. 

Bazeley  v.  Forder,  321. 

Bazemore  v.   Mountain,  83. 

Beach  v.  Beach,  9. 

Beach  v.  Bryan,  315. 

Beach  v.  Mull  in,  584. 

Beachy  v.  Shomber,  439. 

Beakhust  v.  Crumby,  391. 

Beal  v.  Harmon,  419. 

Beal  v.  Warren,  208. 

Beale  v.  Arabia,  178. 

Beale  v.  Knowles,  140. 

Beals  v.  See,  542. 

Beam  v.  Froneberger,  424. 

Beamish  v.  Beamish,  37. 

Bean  v.  Bumpus,  451. 

Bean  v.  Morgan,  158. 

Bear  v.  Hays,  125. 

Beard  v.  Beard,  229. 

Beard  v.  Dean,  405. 

Beard  v.  Dedolph,  203,  208. 

Beardsley  v.  Hotehkiss.  330,  331. 

Beasley  v.  State,  93.  558. 

Beasley  v.  Watson,  410. 

Beason'  v.   State,  471,  529. 

Beauchamp   v.   Bertig,   467,  490,   506, 

512. 
Beauchamp  v.   Sturges  &  Burn   Mfg. 

Co.,  462. 

Beaudette  v.   Goyne,  383. 
Beaudette  v.  Martin,  176. 
Beaver  v.  Bare,  357.  359,  360,  365. 
Beaver  v.  Crump,  316. 
Beazley  v.  Harris,  423.   N 
Beck  v.   Standard   Cotton   Mills,  613, 

615. 

Becker  v.  Becker,  44.  216. 
Becker  v.  Gibson,  392. 
Becker  v.  Mason,  527. 


Becker  v.  Schwerdtle,  388. 
Beckermeister   v.    Beckermeister,    10, 
60. 

Beckman  v.  Stanley,  158. 

Beckwich  Organ  Co.   v.   Malone,  617. 

Beckwith  v.  Butler,  538. 

Bedan  v.  Tirney,  121. 

Bedell  v.  Constable,  452. 

Bedell's  Heirs  v.  Lewis'  Heirs,  469. 

Bedford  v.  McKowl,  376,  381,  382,  384. 

Bedford's  Estate,  In  re,  406. 

Beebe  v.  Beebe,  251. 

Beebe  v.  Estabrook,  390. 

Beeby  v.  Beeby,  279,  280,  282. 

Beedy  v.  Reding,  335,  337. 

Beekman  v.  Beekman,  251. 

Beekman  v.  Bonsor,  565. 

Beeks  v.  Beeks,  14. 

Beel  v.  State,  551. 

Beeler  v.  Dunn,  415. 

Beeler  v.  Young,  481,  482,  485. 

Beeler's  Heirs  v.  Bullitt's  Heirs,  496. 

Beem  v.  Mays,  443. 

Beenel  v.  Louisiana  Cypress  Lumber 
Co.,   454. 

Beeson  v.  Smith,  539. 

Beggs  v.  State,  22,  24. 

Behrens  v.  McKenzie,  542,  546. 

Beickler  v.  Guenther,  478,  512. 

Beinbrink  v.  Fox,  203. 

Beisel  v.  Gerlach,  116. 

Beissel   v.    Vennillion   Farmers'    Ele- 
vator  Co.,  582,   597. 

Belchier,  Ex  parte,  426. 

Beleal  v.  Northern  Pac.  Ry.  Co.,  621. 

Belk  v.  Lee  Roy  Myers  Co.,  607. 

Belknap  v.  Lady  Weyland,  158. 

Belknap  v.   Stewart,   177. 

Bell  v.  Bell's  Guardian.  455. 

Bell  v.  Burkhalter,  510. 

Bell  v.  Clarke,  53. 

Bell  v.  Dingwell,  412,  437. 

Bell  v.  Josselyn,  656. 

Bell  v.  Love,  401. 

Bell  v.  Rossignol,  83. 

Bell  v.  Rudolph,  457. 

Beel  v.  State,  92. 

Bell  v.  Terry  &  Tench  Co.,  308. 

Bell  v.  Toluca  Coal  Co.,  638. 

Bell's  Adm'r  v.  Jasper,  458. 

Bellamy  v.  Thornton,  416. 

Bellefontalne  &  I.  R.  Co.  v.  Snyder, 
523. 

Beller  v.  Beller,  264. 

Bellinger  v.  Devine,  53. 

Bellune  v.  Wallace,  458. 

Bemis  v.  Call,  157. 

Benedicto  v.  Dela  Rama.  282. 

Benjamin  v.  Benjamin,  170,  172. 


CASES  CITED 
[The  figures  refer  to  pages] 


663 


Benjamin   v.   Dockham,   175. 
Benkert  v.  Benkert,  264. 
Bennet  v.  Davis,  187. 
Bennett  v.  Allcott,  378,  383. 
Bennett  v.  Bennett,  30,  88,   109,  114, 

118,  119,  257,  263,  349. 
Bennett  v.  Bennett's  Adm'r,  198. 
Bennett  v.  Byrne,  404,  406. 
Bennett  v.  Davis,  468,  473. 
Bennett  v.  Harms,  145. 
Bennett  v.  Hibbert,  565. 
Bennett     v.      Himmelberger-Harrison 

Lumber  Co.,  608. 
Bennett  v.  Hutchens,  196. 
Bennett  v.  Morton,  586,  596. 
Bennett  v.  Smith,  21,  115,  117. 
Bennett  v.  Truebody,  653,  654. 
Sensing  v.  Steinway,  626. 
Benson  v.  Goodwin,  628. 
Benson  v.  Remington,  354. 
Benson  v.  Tucker,  475,  514. 
Bent's  Adm'r  v.  St.  Vrain,  307. 
Bentley  v.   Doggett,   646. 
Bentley  v.  Smith,  583. 
Bently  v.  Terry,  353. 
Benton,  In  re,  395,  416,  417. 
Benton  v.  Benton,  15. 
Benton  v. -Finkbine  Lumber  Co.,  616. 
Berea  Stone  Co.  v.  Kraft,  630. 
Bergen  v.  Udall,  389. 
Berger  v.   Jacobs,   103,  108,  110,  111. 
Berger  v.  Kirby,  48. 
Bergh  v.  Warner,  169,  175. 
Berglund     v.     American     Multigraph 

Sales  Co.,  514,  516. 
Berkmeyer  v.  Kellerman,  389,  449. 
Bernard  v.  Pittsburg  Coal  Co.,  468. 
Bernecker  v.  Miller,  470. 
Bernero  v.  Goodwin,  317; 
Berow  v.  Shields,  84,  85,  86. 
Berry,  In  re,  147,  148. 
Berry  v.  Bakeman,  12. 
Berry  v.   Johnson,  405. 
Berry  v.  Powell,  307,  308,  309. 
Berry  v.  Stigall,  511. 
Berry  v.  Tullis,  309. 
Bertelsen   v.   Rock   Island   Plow   Co., 

632. 

Berthon  v.  Cartwright,  ii5. 
Bertles  v.  Numan,  146,  148,  149. 
Bertolami    v.    United    Engineering   & 

Contracting  Co.,  611. 
Besant  v.  Wood,  239. 
Besondy,   In  re,  325,   331. 
Bess  Mar  Realty  Co.  v.  Capell,  466. 
Bessex  v.  Railway  Co.,  609. 
Best  v.  House,  306. 
Best  v.  Lizarrago.  586. 
Best  &  Co.  v.  Cohen,  178. 


Bethune's  Will,  In  re,  34. 

Bettes  v.  Brower,  436. 

Bettini  v.  Gye,  588. 

Bettle  v.  Wilson,  240. 

Beta  v.  Lovell,  389. 

Beverley,  Case  of,  544,  557. 

Beverley,  In  re,  533. 

Beverlin  v.  Beverlin,  38,  42. 

Beverlin  v.  Casto,  235. 

Beverson's   Estate,   In  re,  48. 

Bevier  v.  Galloway,  176. 

Bey  v.  Bey,  46,  53. 

Beyerle  v.  Beyerle,  351. 

Bibb  v.  State,  91. 

Bibelhausen  v.  Bibelhausen,  219,  224, 

225. 

Bickerstaff    v.    Marlin,    430. 
Bickford  v.  Bickford,  272. 
Bickle  v.  Turner,  512. 
Bicknell  v.  Bicknell,  486. 
Bierbauer  v.  Wirth,  579. 
Bierer,  Appeal  of,  223,  224,  225. 
Biersack,  In  re,  43,  50,  63,  64,  296. 
Bierstadt  v.  Bierstadt,  244. 
Bigaouette  v.  Paulet,  114,  121. 
Bigelow  v.  Grannis,  504. 
Bigelow  v.  Kinney,  475,  494,  503,  507, 

508. 
Biggs  v.  St.  Louis,  I.  M.  &  S.  Ry.  Co., 

355,  364. 

Bilder  v.  Robinson,  149. 
Bill  v.  Buckhalter,  498. 
Billings  v.  Baker,  194. 
Billings  v.  Head,  317. 
Billington  v.  Cahill,  579. 
Binford  v.   Johnston,   521. 
Bingham  v.  Bingham,  278. 
Bingham  v.  Miller,  292. 
Birch  v.  Abercrombie,  335,  336. 
Bird  v.  Utica  Gold  Mining  Co.,  611. 
Birdsall  v.  Edgerton,  306. 
Birmingham  v.  O'Neil,  88. 
Birmingham  Coal  &  Iron  Co.  v.  Doe 

ex  dem  Arnett,  452. 
Birmingham  Southern  R.  Co.  v.  Lint- 

ner,  110. 
Birmingham      Waterworks      Co.      v. 

Hume,  198. 

Birtwhistle  v.   Vardill,  300. 
Bisbee  v.  Gleason,  458. 
Bisbee  v.  McManus,  333. 
Bishop  v.  Bishop,  89,  266. 
Bishop  v.  Brittain  Inv.  Co.,  49,  50. 
Bishop  v.  Ranney,  587. 
Bishop  v.  Readsboro  Chair  Mfg.  Co., 

140. 

Bissell  v.  Myton,  306. 
Bixby  v.  Dunlap,  643. 
Black  v.  Bryan,  179. 


GC4 


CASES  CITED 

[The  figures  refer  to  pages] 


Black  v.  Hills,  515,  517. 
Blackburn  v.  Crawford,  38. 
Blackhawk  County  v.  Scott,  87,  88. 
Blacksher  v.   Northrup,  398. 
Blackwell  v.  Willard,  567. 
Blaechinska    v.    Howard    Mission    & 

Home    for    Little    Wanderers,    126, 

127,   200. 

Blagge  v.  Ilsley,  378,  380,  381,  383. 
Blair  v.  Adams,  309. 
Blair   v.   Broadwater,   337. 
Blair  v.  Chicago  &  A.  R.  Co.,  111. 
Blair  v.  Teel,  205,  206. 
Blair  v.  Whittaker,  510. 
Blake  v.  Blake,  455. 
Blake  v.  Ferris,  651,  652,  654. 
Blake  v.  Hollandsworth,  495,  497. 
Blake  v.  Lanyon,  643. 
Blakely's  Will,  In  re,  553. 
Blakeslee  v.   Blakeslee,   6,  244. 
Blakeslee  v.  Tyler,  92. 
Blanchard  v.  Ilsley,  376,  409,  410. 
Blanchard  v.  Lambert,  42,  44,  50,  64. 
Blanchard  v.  Nestle,  554. 
Blaney  v.  Blaney,  268. 
Blanke  v.  Southern  R.  Co.,  32,  51. 
Blankenmiester     v.     Blankenmiester, 

14. 

Blankenship  v.  Ross,  308. 
Blanks  v.  Southern  R.  Co.,  51, 
Blauser  v.  Diehl,  439,  458. 
Blaymire  v.  Haley,  371. 
Bleck  v.  Bleck,  286. 
Bledsoe  v.  Britt,  455. 
Bledsoe  v.  Fitts,  201. 
Bledsoe  v.  Seaman,  288. 
Blid  v.  Blid,  351. 
Bliss  v.  Bliss,  280. 
Blodget  v.  Brinsmaid,  27,  28. 
Blomfleld  v.  Eyre,  401. 
Blondin  v.  Brooks,  203. 
Blonski  v.  American  Enameled  Brick 

&   Tile   Co.,   614. 
Blood  v.  Enos,  603. 
Bloomer  v.  Nolan,  487. 
Blossom  v.  Barrett,  32. 
Blough  v.  Parry,  553. 
Blount  v.  Bestland,  133. 
Blue  v.  Marshall,  430. 
Blurock  v.  Blurock,  253. 
Blust  v.  Pacific  States  Telephone  Co., 

607,   612. 

Blythe  v.  Ayres,  302,  303,  304,  305. 
Blythe  v.  Hlnckley,  565. 
Boardman,  Appeal  of,  216. 
Board    of    Children's    Guardians    of 

Marion  County  v.  Shutter,  400,  407. 
Board    of    Com'rs    of    Hillsborough 

County  v.  Savage,  463. 


Board  of  Com'rs  of  Madison  County 
v.  Moore,  536. 

Boaz  v.  Swinney,  320. 

Boaz's  Adm'r  v.  Milliken,  426,  428. 

Bock  v.  Bock,  27. 

Bodie  v.  Bates,  243,  244. 

Bodkin  v.  Kerr,  127. 

Boeck  v.  Boeck,  257. 

Boehm  v.  Boehm,  81. 

Boehm  v.  Detroit,  523. 

Boehs  v.  Hanger,  10. 

Boggess  v.  Boggess,  253. 

Boggess  v.  Richard's  Adm'r,  221,  253. 

Boggs  v.  Adger,  432,  433. 

Bogie  v.  Nelson,  159,  205. 

Bohnert   v.    Bohnert,   280. 

Boisseau  v.  Boisseau,  423,  424,  434. 

Bokoshe  Smokeless  Coal  Co.  v.  More- 
head,  653. 

Boland  v.  McKowen,  148. 

Boland  v.  Missouri  R.  Co.,  523. 

Boland  v.  Stanley,  114,  115,  116. 

Boldrick  v.  Mills,  129. 

Boiling  v  State,  550. 

Bellinger  v.  Wright,  151. 

Bolthouse  v.  De  Spelder,  205. 

Bolton  v.  Miller,  371,  379,  380. 

Bolton  v.  Prentice,  176,  179. 

Bond  v.  Bond,  538,  539. 

Bond  v.  Conway,  132. 

Bond  v.  Lockwood,  326,  428,  436,  443, 
457. 

Bondies  v.  Bondies,  327. 

Bondy  v.  American  Transfer  Co.,  110. 

Bonebrake  v.  Tauer,  83. 

Bonham  v.  Badgley,  28,  57,  66. 

Bonham  v.  People,  457,  458. 

Bonner  v.  Evans,  455. 

Bonnett  v.  Bonnett,  347,  353,  354. 

Bonney  v.  Reardin,  184. 

Bonwit,  Teller  &  Co.  v.  Lovett,  170. 

Boody  v.  McKenney,  495,  500,  510, 
512. 

Booge  v.  Railroad  Co.,  598. 

Booker  v.  Booker,  152. 

Booker  v.  Castillo,  154. 

Bool  v.  Mix,  492,  493,  506,  507. 

Boone  v.  Lohr,  621. 

Booth  v.  Backus,  200. 

Booth  v.  Fordham,  146. 

Booth  v.  Manchester  St.  Ry.,  110. 

Booth  v.  Ratcliffe,  582. 

Booth  v.  R.  Co.,  611. 

Booth  v.  Wilkinson,  421. 

Booth  Mercantile  Co.  v.  Murphy,  207. 

Borden.  v.  Borden,  262. 

Borden  v.  Daisy  Roller  Mill  Co.,  617. 

Borgnis  v.  Falk  Co.,  637,  638. 

Borland  v.  Welch,  217. 


CASES  CITED 


665 


[The  figures  refer  to  pages] 


Born  v.  Chicago  City  B.  Co.,  511,  513. 

Bort,  In  re,  348,  350. 

Boruff  v.   Stipp,  428. 

Boss  v.  Jordan,  85. 

Bostick  v.  State,  16. 

Boston  Bank  v.  Chamberlin,  503. 

Boston  Glass  Manufactory  v.  Binney, 
644. 

Bostwick,  In  re,  415. 

Bostwick   v.   Bostwick's   Estate,   577. 

Bosville  v.  Attorney  General,  297. 

Bottiller  v.  Newport,  489. 

Bouchell  v.  Clary,  482,  484 

Bouknight  v.  Epting,  197. 

Boulden  v.  Mclntire,  64. 

Bouldin  v.  Miller,  440. 

Boulting  v.   Boulting,   274,  27o. 

Bounell   v.   Berryhill,   408. 

Bourdreaux  v.  Lower  Terrehonne  Re- 
fining &  Mfg.  Co.  430. 

Bourgeois  v.  Chauvin,  273,  274. 

Bourgeois  v.  Edwards,  200. 

Bourne  v.  Maybin,  443,  444,  450. 

Boutell  v.  Shellabarger,  103. 

Boutterie  v.  Demarest,  16. 

Bovard  v.  Kettering,  164. 

Bovy  (Sir  Ralph)  Case  of,  225,  226. 

Bowden  v.  Gray,  125. 

Bowen  v.  Hall,  644. 

Bower,   Appeal  of,   2091 

Bowers  v.  Bowers,  26,  28,  59,  66. 

Bowers  v.  Good,  155. 

Bowes  v.  Tibbets,  357. 

Bowie  v.  Bowie,  280. 

Bowie  v.  Stonestreet,  231. 

Bowker  v.  Pierce,  433. 

Bowles  v.  Bingham,  294,  300. 

Bowles  v.  Winchester,  391. 

Bowman  v.  Bowman,  38,  44,  45. 

Bowman  v.  Wade,  539. 

Bowring  v.  Wilmington  Malleable 
Iron  Co.,  615. 

Boxa  v.  Boxa,  351. 

Boyce  v.  Boyce,  89. 

Boyce's  Adm'r  v.  Smith,  539. 

Boyd  v.  Blaisdell,  367. 

Boyd  v.  Boyd,  240,  241,  391. 

Boyd  v.  Byrd,  370,  371. 

Boyd  v.  State,  340,  342,  343. 

Boyd  v.  Taylor,  614. 

Boyden  v.  Boyden,  500,  515. 

Boyer  v.  Berryman,  540,  541. 

Boyer  v.  Dively,  55. 

Boyes'  Estate,  In  re,  410,  413,  416. 

Boyett  v.  Hurst,  434. 

Boyington's  Estate,  In  re,  44,  49,  51, 
53. 

Boykin  v.  Collins,  519S 


Boykin  v.  Rain,  141. 

Boylan  v.  Deinzer,  28. 

Boyle  v.  Boyle,  252. 

Boyle  v.  Brandon,  382. 

Boynton  v.  Dyer,  431,  432. 

Bozeman  v.  Browning,  474. 

Bracegirdle  v.  Heald,  579. 

Brack  v.  Morris,  400,  407. 

Brackett  v.  Brackett,  344,  345. 

Bracy  v.  Kibbe,  384. 

Bradburn  v.  Wabash  R.  Co.,  613. 

Bradbury  v.  Place,  543. 

Bradfield  v.  Bradfield,  245. 

Bradford  v.  Greenway,  190. 

Bradley  v.  Amidon,  429. 

Bradley  v.  Bradley,  264,  265. 

Bradley  v.  Keen,  333. 

Bradley  v.  Pratt,  482,  483. 

Bradley  v.   Saddler,  226. 

Bradley  v.  Vandalia  R.  Co.,  618. 

Bradshaw  v.  Beard,  182. 

Bradshaw  v.  Bradshaw,  451. 

Bradshaw  v.  Standard  Oil  Co.,  630. 

Bradshaw  v.  Van  Winkle,  491. 

Bradsher  v.  Cannady,  391. 

Brady,  In  re,  406. 

Brady   v.   Equitable  Trust  Co.,   210, 

211. 

Bramwell  v.  Bramwell,  278,  279,  281. 
Branch  v.  Branch's  Ex'r,  240. 
Brandau  v.  Greer,  419. 
Brandau  v.  McCurley,  234. 
Brandon   v.   Brown,   512. 
Bransom's  Adm'r  v.  Labrot,  521. 
Bra'nson  v.  Branson,  276. 
Brantley  v.  Wolf,  502,  528. 
Brashford  v.  Buckingham,  125. 
Braswell  v.  Garfleld  Cotton  Oil  Mill 

Co.,  368. 

Brattain  v.  Cannady,  455. 
Braua  v.  Braua,  463. 
Braucht  v.  Graves-May  Co.,  512,  514. 
Brawner  v.  Franklin,  510,  512. 
Bray  v.  Wheeler,  365. 
Brazil  v.  Moran,  96,  97,  98. 
Brecheisen  v.  Clark,  234. 
Breckenridge's  Heirs  v.  Ormsby,  496, 

540. 

Bredin  v.  Dwen,  411. 
Breed  v.  Judd,  485,  514. 
Breed  v.  Pratt,  554. 
Breeding  v.  Davis,  140. 
Breidenstein  v.  Bertram,  301.         i 
Breig  v.  R.  Co.,  620. 
Breiman  v.  Paasch,  120. 
Brennan  v.  Union   Hatters  of  North 

America,  Local  No.  17,  645. 
Brenner  v.  Goldstein,  104. 
Bresser  v.  Saarman,  311. 


666 


CASES  CITED 
[The  figures  refer  to  pages] 


Bressjer  v.   Kent,  106,  167,  188,  202, 

208.r 

Breton's  Estate,  In  re,  231. 
Brewer  v.  Brewer,  83. 
Brewer  v.  Gary,  335. 
Brewer  v.  Wright,  602. 
Brice  v.  Brice,  327. 
Brick  v.  Railroad  Co..  625. 
Brick's  Estate,   In  re,  451. 
Brickway's  Case,  536. 
Bridge  v.  Bridge,  280. 
Bridge  v.   Eggleston,  221. 
Bridges  v.  Hales,  398. 
Brien's  Estate,  In  re,  406. 
Briese  v.  Maechtle,  524. 
Briggs  v.  Evans,  383. 
Briggs  v.  McBride,  153,  155. 
Briggs  v.  McCabe,  476. 
Briggs  v.  McLaughlin,  294. 
Briggs  v.  Morgan,  29. 
Briggs  v.  Sanford,  126,  200. 
Brinkerhoff  v.  Mersells'  Ex'rs,  320. 
Brinster   v.   Compton,   345,   347,   348, 

350. 

Brisco  v.  Brisco,  284. 
Briscoe  v.  Price,  356. 
Briscoe  y.  Tarkington,  467. 
Bristor  v.  Chicago  &  N.  W.  Ry.  Co., 

359. 

Bristow  v.  Eastman,  529. 
Brittingham  v.   Stadiem,   335. 
Britton  v.  South  Penn  Oil  Co.,  513. 
Britton  v.  Turner,  605. 
Broadrick  v.   Broadrick,  219,  225. 
Broadstreet  v.  Broadstreet,  248.    • 
Broadus  v.  Rosson,  412. 
Broadwater   v.    Darne,    555. 
Broadwell  v.  Getman,  579. 
Brodrib  v.  Brodrib,  444. 
Brohl  v.  Lingerman,  335. 
Brokaw  v.  Brokaw,  258. 
Bromley  v.  Wallace.  121. 
Brook  v.   Brook,   169. 
Brooke  v.  Filer,  567. 
Brooke  v.  Logan,  352. 
Brooker  v.  Scott,  483. 
Brookes  v.  Brookes,  262. 
Brookman  v.  Durkee,  153. 
Brooks  v.  Barrett,  553. 
Brooks  v.  Brooks,  455. 
Brooks  v.  Brooks'  Ex'rs,  225. 
Brooks  v.  Rayner,  458. 
Brooks  v.  Sawyer,  528. 
Brooks  v.  Schwein,  126. 
Brooks  v.   Schwerin,  127. 
Brooks  v.  Tobin,  457. 
Brosius  v.  Barker,  333,  359,  360. 
Brossman  v.   Drake   Standard  Mach. 

Works,    609. 


Brothers  v.  Cartter,  629. 

Brow  v.  Brightman,  327. 

Brower  v.  Fisher,  554. 

Brown,  In  re,  346,  410,  444. 

Brown  v.  Ackroyd,  ISO. 

Brown  v.  Bennett,  158. 

Brown  v.  Board  of  Education,  597. 

Brown  v.  Bokee,  132,  133. 

Brown  v.  Brown,  32,  80,  106,  233,  246, 

250,  253,  255,  268,  278,  538. 
Brown  v.  Caldwell,  476. 
Brown  v.  Campbell,  432. 
Brown  v.  Clark,  231. 
Brown  v.  Crown  Gold  Milling  Co.,  598, 

605. 

Brown  v.  Davis,  152. 
Brown  v.  Dunham,  423. 
Brown  v.  Fifield,  203,  208. 
Brown  v.  Finley,  320. 
Brown  v.  Fitz,  130. 
Brown  v.  French,  432,  433. 
Brown  v.  Gilchrist,  626. 
Brown  v.  Grant,  412. 
Brown  v.   Hooks,  466. 
Brown  v.  Hull,  468,  469. 
Brown  v.  Huntsman,  452. 
Brown  v.  Kerby,  309. 
Brown  v.  Kistleman,  112. 
Brown  v.  Lynch,  393,  406. 
Brown  v.   McCune,  490,  528. 
Brown  v.  Moudy,  179. 
Brown  v.  Railroad  Co.,  628. 
Brown  v.  Ramsay,  361,  362,  383. 
Brown  v.  Smith,  327,  331. 
Brown  v.  Staab,  494,  505. 
Brown  v.   State,  328,  386,  530. 
Brown  v.  Wheelock,  519. 
Brown  v.  Wright,  432. 
Brown's  Adm'rs   v.   Brown's  Adm'rs, 

129,  187. 

Brown's  Adoption,  In  re,  311,  313. 
Browne  v.  Bedford.  416. 
Browne  v.  Dexter.  561. 
Browning  v.  Browning,  21,  39,  271. 
Browning  v.  Jones,  121,  122. 
Browning  v.  Reane,  13,  18. 
Bruce  v.  Bruce,   233. 
Bruce  v.  Burke,  34. 
Bruce  v.  Griscom.  391. 
Bruce  v.  Tobin.  392. 
Bruguiere  v.    Brujjuiere,   290. 
Brumby  v.  Smith.  594. 
Bruner  v.  Bruner,  263. 
Bruner  v.  Mosner,  577. 
Brunhoelzl  v.  Brandes,  524,  526. 
Bruns  v.  Cope,  20,  62. 
Brunson  v.  Henry,  390. 
Brunswig  v.  White,  :!77. 
Brusle  v.  Dehou,  154. 


CASES  CITED 
[The  figures  refer  to  pages] 


667 


Brusseau  v.  Lower  Brick  Co.,  614. 

Bryan  v.  Bryan,  136. 

Bryan  v.  Doolittle,  183. 

Bryan  v.  Jackson,  332. 

Bryan  v.  Lyon.  34T,  352. 

Bryant   v.    Fissell,   639,   640. 

Bryant  v.  Jackson,  547. 

Bryant  v.  Jones,  161. 

Bryant  v.  Lane,  177. 

Bryant  v.  Rich,  650. 

Bryce  v.  Wynn,  405. 

Bryon,  Ex  parte,  305. 

Bryson  v.  .Campbell,  292. 

Bryson  v.  Collmer,  428. 

Buchanan  v.  Buchanan,  345. 

Buchanan  v.  Hubbard,  502,  506,  507. 

Buchanan  v.  Lee,  196. 

Buchanan  v.  Turner,  188. 

Bucher  v.  Ream,  125. 

Buchser  v.  Morss,  150. 

Buck  v.  Meyer,  319. 

Buck  v.  Wroten,  186. 

Bucklew  v.  Central  Iowa  R.  Co.,  635. 

Buckley  v.  Buckley,  291. 

Buckley  v.  Collier,  125. 

Buckley  v.  Herder,  450,  519. 

Buckley's  Adm'r  v.  Howard,  330. 

Buckmaster  v.  Buckmaster,  264. 

Buckminister  v.  Buckminister,  324. 

Buckner  v.  Buckner,  258. 

Buckner's  Adm'r  v.  Buckner,  295. 

Budde  v.   U.    S.   Incandescent   Lamp 

Co.,  627. 

Buerfening  v.  Buerfening,  285. 
Bullard  v.  Briggs,  237. 
Bullard  v.  Spoor,  469. 
Bullock  v.  Babcock.  524,  525. 
Bullock  v.  Knox,  300. 
Buhner  v.  Hunter,  222. 
Bumgardner  v.  Harris,  221. 
Bunce  v.  Bunce,  439. 
Bundschuh  v.  Mayer,  104. 
Bundy  v.  Dodson,  355. 
Bunel  v.  O'Day,  296. 
Bunger  v.  Bunger,  271. 
Bunnell  v.  Greathead,  122. 
Bunnell  v.  Witherow,  221. 
Burch  v.  Breckinridge,  188. 
•Burdeau  v.  Davey,  423. 
Burdett  v.  Williams,  491,  504. 
Burgedorf  v.  Hamer,  543. 
Burger  v.  Frakes,  313,  395. 
Burgess  v.  Carpenter,  643. 
Burghart  v.  Angerstein,  483,  485,  486. 
Burke,  In  re,  534. 
Burke  v.  Allen,  540,  544. 
Burk  v.  Burk,  257,  261,  263. 
Burke,  In  re,  331. 
Burke  v.  Ellis,  521. 


Burke  v.  Turner,  330. 

Burke  v.  Wheaton,  534. 

Burke  &  Williams  v.  Mackenzie,  434. 

Burleigh  v.  Coffin,  131,  132. 

Burlen  v.  Shannon,  245,  287,  290. 

Burley  v.  Russell,  490. 

Burlingame  v.  Burlingame,  359. 

Burnard  v.  Haggis,  526. 

Burnet  v.  Burnet,  442. 

Burnett  v.  Burkhead,  117. 

Burnett  v.  Burnett,  44. 

Burnett  v.  Kinnaston,  134. 

Burnett's  Estate,  In  re,  317. 

Burney  v.  Ryle,  600. 

Burnham  v.  Hardy  Oil  Co.,  155. 

Burnham  v.  Kidwell,  538,  539,  541. 

Burnham  v.  Mitchell,  538. 

Burnham  v.  Seaverns,  525. 

Burnham  v.  Stoutt,  209. 

Burns,  Case  of,  641. 

Burns  v.  Burns,  279,  280. 

Burns  v.  Cooper,  157,  207. 

Burns  v.  Illinois  Cent.  R.  Co.,  487. 

Burns  v.  Parker,  405. 

Burns  v.  Wilson,  469. 

Burr  v.  Burr,  244. 

Burr  v.  Swan,  205. 

Burr  v.  Wilson,  519. 

Burrage  v.  Briggs,  315,  319. 

Burrell,  Succession  of,  453. 

Burrill  v.  Eddy,  623. 

Burritt  v.  Burritt,  327. 

Burrows  v.   Ozark   White  Lime   Co., 

613. 

Bursirk  v.  Sanders,  436. 
Burson's  Appeal,  197. 
Burt  v.  McBain,  103. 
Burtis  v.  Burtis,  59,  60,  243. 
Burtis  v.  Thompson,  586. 
Burton  v.  Anthony,  486. 
Burton  v.  Behan,  578. 
Burton  v.  Belvin,  306. 
Burton  v.  Tunnell,  444. 
Burtwhistle  v.  Vardill,  304. 
Bury  v.  Phillpot,  296,  298. 
Busch  v.  Supreme  Tent,  51. 
Bush  v.  Bush,  255.  v 

Bush  v.  Linthicum,  469,  475,  489,  493. 
Bush  v.  West  Yellow  Pine  Co.,  620. 
Butler  v.  Breck,  184,  477. 
Butler  v.  Buckingham,  157,  167. 
Butler  v.  Butler,  32,  250,  255,  256,  260, 

276,  330. 

Butler  v.  Eschleman,  12. 
Butler  v.  Frank,  160,  164. 
Butler  v.  Freeman,  400. 
Butler  v.   Gastrill,  27. 
Butler  v.  Legro.  457. 
Butler  v.  Mill  Co.,  G05. 


668 


CASES  CITED 

[The  figures  refer  to  pages] 


Butler  v.  Railroad  Co.,  109. 
Butler  v.  Washington,  289. 
Butterfleld  v.  Ashley,  385,  642,  643. 
Butterfield  v.  Beall,  140,  141. 
Butterfleld  v.  Butterfleld,  106. 
Butterfleld  v.  Byron,  594. 
Butterfield  v.  Ennis,  44,  114. 
Butterick  Pub.  Co.  v.  Whltcomb,  589, 

592. 

Buttler  v.  Farmers'  Nat  Bank,  234. 
Bynum  v.  Wicker,  148. 
Byrd  v.  State,  557. 
Byrd  v.  Turpln,  441. 
Byrne  v.  Learnardl  624. 
Byrne  v.  R,  Co.,  521. 


C.  v.  C.  11,  17. 

Caballero,  Succession  of,  v.  Executor, 

70. 

Cabbie  v.  Cabbie,  440. 
Cadden  v.  American  Steel-Barge  Co., 

626. 

Cadwell  v.  Sherman,  355. 
Caffey  v.  Kelly,  128,  130. 
Caffrey  v.  Darby,  428. 
Cain  v.  Bunkley,  212. 
Cain  v.  Devitt,  356. 
Cain  v.  Garner,  476. 
Cain  v.  Gray,  301. 
Cairns  v.  Cairns,  274. 
Caldwell,  Succession  of,  312. 
Caldwell  v.  Blanchard,  159,  180. 
Caldwell  v.  Caldwell.  350. 
Caldwell  v.  Eneas,  575. 
Caldwell  v.  Young,  431. 
Calhoon  v.  Baird,  466. 
Calhoun  v.  Bryant,  318,  320. 
Calhoun  v.  Calhoun,  409,  416. 
Calichio  v.  Calichiol  260. 
Calkins  v.  Long,  240. 
Call  v.  Ruffin,  458. 
Call  T.  Ward,  411. 
Gallery's  Estate,  In  re,  49. 
Callis  v.  Day,  475,  501.  503.  508. 
Callo  v.  Brouncker,  589,  590. 
Caltabellotta's  Will,  In  re,  291. 
Calumet  Fuel  Co.  v.  Rossi,  611. 
Calvert  v.  Godfrey,  437. 
Calvo  v.  Railroad  Co.,  626. 
Camenzind  v.  Freeland  Furniture  Co., 
60S,  610,  634. 
Cameron  v.  Hicks,  466. 
Cameron-Barkley     Co.     v.     Thornton 

Light  &  Power  Co.,  555. 
Camp  v.  Smith,  217. 
Campbell  v.  Campbell,  251,  356,  360. 


Campbell  v.  Faxon,  Horton  &  Gal- 
lagher, 594. 

Campbell  v.  Fichter,  429. 

Campbell  v.  Gullatt,  42. 

Campbell  v.  Heuer,  86. 

Campbell  v.  Kuhn,  544. 

Campbell  v.  Mansfield,  398. 

Campbell  v.  O'Neill,  413,  415,  443. 

Campbell  v.  Rust,  599. 

Campbell  v.  Stakes,  524,  526. 

Campbell  v.  Wallace,  561. 

Campbell  v.  Williams,  444. 

Campbell's  Adm'r  v.  Gullatt,  39,  44. 

Campbell's  Estate,  In  re,  52,  295. 

Campion  v.  Cotton,  216,  221. 

Canal  Bank  v.  Partee,  205. 

Canale  v.  People,  23. 

Canby's  Lessee  v.  Porter,  141. 

Candy  v.  Hanmore,  444. 

Candy  v.  Soppock,  157. 

Caney  v.  Bond,  428. 

Cannon  v.  Alsbury,  23,  38,  39,  477. 

Cannon  v.  Cannon,  299. 

Canovar  v.  Cooper,  355,  360,  362. 

Cantelou  v.  Doe,  31. 

Cantine  v.  Phillips'  Adm'r.,  477,  481, 

Cassady  v.  Magher,  557. 

Cany  v.  Halleck,  605. 

Cany  v.  Patton,  174. 

Capehart  v.  Huey,  425. 

Capel  v.  Powell,  97,  98. 

Capen  v.  Garrison,  437. 

Caplinger  v.  Stokes,  420. 

Capper  v.  Railroad  Co.,  628. 

Capps  v.  University  of  Chicago,  58L 

Caras  v.  Hendrix,  6. 

Carbajal  v.  Fernandez,  250. 

Card  v.  Eddy,  632. 

Cardwell,  Guardianship  of,  443. 

Carey  v.  Carey,  245. 

Carey  v.  Hertel,  352. 

Carey  v.  Mackey,  240. 

Carey  v.  Rochereau,  656. 

Cargill  v.  Cargill,  262. 

Carle  v.  Heller,  200. 

Carleton  v.  Haywood,  96,  97,  98. 

Carleton  v.  Lovejoy,  128. 

Carleton  v.  Rivers,  125. 

Carlisle  v.  Tuttle,  393. 

Carlisle  v.  U.  S.,  562. 

Carlson  v.  Railway  Co.,  608. 

Carmichael  v.  State,  39,  43,  44. 

Came  v.  Brice,  129. 

Carpenter,  In  re,  193. 

Carpenter  v.  Buffalo  General  Electric 
Co.,  315. 

Carpenter  v.  Carpenter,  202,  252,  255,. 
493,  538. 


CASES  CITED 
[The  figures  refer  to  pages] 


669 


Carpenter  v.  Comings,  227. 

Carpenter  v.  McBride,  423. 

Carpenter  v.  Mitchell,  161,  207,  212. 

Carpenter  v.  Rodgers,  555. 

Carpenter  v.  Soloman,  451. 

Carpenter  v.  Whitman,  305,  306. 

Carr  v.  Carr,  130,  250,  349,  351. 

Carr  v.  Clough,  493,  510. 

Carr  v.  Holliday,  542. 

Carr  v.  Spannagel,  452. 

Carr  v.  State,  530. 

Carr  v.  Taylor,  133. 

Carrier  v.  Sears,  540,  544. 

Carrillo  v.  McPhillips,  428. 

Carris  v.  Carris,  10,  12,  60. 

Carrol  v.  Bird,  601. 

Carrol  v.  Blencow,  158. 

Carroll,  In  re,  81,  315. 

Carroll  v.  Carroll,  64. 

Carroll's  Estate,  In  re,  312,  316. 

Carson  v.  Berthold  &  Jennings  Lumber 
Co.,  232. 

Carson  v.  Carson,  200. 

Carson  v.  Murray,  240,  241. 

Carstens  v.  Hanselman,  83. 

Carter  v.  Bolster,  534. 

Carter  v.  Carter,  137,  196. 

Carter  v.  Howard,  175,  179. 

Carter  v.  McDermott,  606,  60S,  609, 
611. 

Carter  v.  Railway  Co.,  650. 

Carter  v.  State,  470. 

Carter  v.  Tice,  447,  448. 

Carter  v.  Towne,  521. 

Carter  v.  Veith,  31. 

Carteret  v.  Paschal,  134. 

Cartwright  v.  McGown,  32,  45,  47,  48, 
53,  57,  61. 

Carty  v.  Carty,  246. 

Cary  v.  Gary,  419. 

Gary  v.  Dixon,  205. 

Casement  v.  Callaghan,  474,  505. 

Case  Threshing  Mach.  Co.  v.  Wiley, 
154. 

Casey  v.  Casey,  250. 

Casey-Hedges  Co.  v.  Oliphant,  613. 

Cash  v.  Cash,  64. 

Cashman  v.  Henry,  209. 

Cass,  Succession  of,  454. 

Cass  County  v.  Nixon,  462. 

Cassady  v.  Magher,  557. 

Cassedy  v.  Casey,  420. 

Cassin  v.  Delany,  96,  97,  98. 

Castanedo  v.  Fortier,  256. 

Casteel  v.  Brooks,  109. 

Castillo  v.  Castillo,  131. 

Castner  Electrolytic  Alkali  Co.  v.  Da- 
vies,  625. 

Caswell  v.  Caswell,  270. 


Caterall  v.  Kenyon,  96. 

Cathcart  v.  Robinson,  237. 

Catlin  v.  Haddox,  498. 

Caton  v.  Caton,  226,  272. 

Caughey  v.  Smith,  385,  642,  643. 

Caujoile  v.  Ferrie,  61. 

Caulk  v.  Fox,  216. 

Cavanagh  v.  Dinsmore,  648. 

Cave  v.  Cave,  296. 

Cave  v.  Roberts,  145. 

Cavell  v.  Prince,  30,  57. 

Cawthorne  v.  Cordrey,  579. 

Caylor  v.  Roe,  226. 

Caylor  Lumber  Co.  v.  Mays,  193. 

Cayzer  v.  Taylor,  615. 

Cazassa  v.  Cazassa,  391. 

C.  D.  Smith  &  Co.  v.  Ohler,  596. 

Cecil  v.  Salisberry,  502. 

Cennell  v.  Oscar  Daniels  Co.,  639. 

Central  Granaries  Co.  v.  Ault,  608. 

Central  of  Georgia  R.  Co.  v.  Cheney, 

127. 

Central  Ry.  Co.  v.- Peacock,  650. 
Central  Trust  Co.  v.  McCarroll,  705. 
Cevene  v.  Cevene,  253. 
Chace,  Ex  parte,  68,  70,  71,  76. 
Ohaddock  College  v.  Bretherick,  592. 
Chaloner  v.   Sherman,  534. 
Chaloux  v.  International  Paper  Co.r 

355,  361. 

Chamberlain  v.  Chamberlain,  51. 
Chamberlain   v.   Townsend,  87. 
Chambers  v.  Chambers,  309. 
Chambers  v.  Chattanooga  Union  Ry. 

Co.,  488,  494. 
Chambers  v.  Perry,  130. 
Chambers  v.   Woodbury  Mfg.  Co.   of 

Baltimore   County,   613,   615. 
Chamblee  v.   Baker,  588. 
Champlain  v.  Stamping  Co.,  597. 
Champlin   v.   Champlin,   240. 
Chancey  v.  Whinnery,  64. 
Chandler  v.  Chandler,  349,  351. 
Chandler  v.  Com.,  531. 
Chandler  v.  Deaton,  335. 
Chandler  v.  Jones,  513. 
Chandler  v.   Simmons,  496,  500,  510, 

511,  512. 

Chapln  v.  Shafer,  506. 
Chaplin  v.  Illinois  Terminal  R.  Co., 

633. 

Chapline  v.  Moore,  330. 
'Chapline  v.  Stone,  18. 
Chapman  v.  Chapman,  39. 
Chapman  v.  Duffy,  496. 
Chapman  v.  Hughes,  481,  519. 
Chapman  v.  Tibbits,  441. 
Chapman  T.  Underwood,  647. 


670 


CASES  CITED 
[The  figures  refer  to  pages] 


Chappie  v.  Cooper,  481,  485. 

Ghapsky  v.  Wood,  346,  347,  349,  352, 

353.  354. 

Charles  v.  Andrews,  217. 
Charles  v.   Hastedt,  528. 
Charles  v.  Witt,  419,  436.  444. 
Charles  M.  Decker  &  Bros.  v.  Moyer, 

176. 

Charlton  v.  Jackson,  337. 
Charron  v.  Day,  83. 
Charron  v.  Union  Carbide  Co.,  615. 
Chase  v.  Elkins,  359,  364,  365. 
Chase  v.  Fitz,  226. 
Chase  v.  Knabel,  648. 
Chase  v.  McKenzie,  146. 
Chase  v.  Smith,  360,  363. 
Chastain  v.  Johns,  335. 
Chnttahoochee  Brick  Co.  v.  Braswell, 

620. 

Chatterton  v.  Chatterton,  262. 
Cheatham  v.  Cheatham,  253. 
Cheely  v.  Clayton,  245,  287. 
Cheeney  v.  Steamship  Co.,  627. 
Cheever  v.  Kelly,  333. 
Cheever  v.  Wilson,  187,  246. 
Chehak  v.  Battle,  319. 
Chenall  v.  Palmer  Brick  Co.,  622. 
Chenery's  Estate,  In  re,  445. 
Cheney  v.  Arnold,  44,  45,  53. 
Cheney  v.  Roodhouse,  435,  456. 
Chesapeake.  O.  &  S.  W.  R.  Co.  v.  Mc- 
Dowell, 620. 
Chesapeake  &  O.  Ry.  Co.  v.  De  Atle^, 

368,  369,  370. 

Cheshire  v.  Barrett,  501,  502. 
Chesson  v.  Walker,  625. 
Chew  v.  Bank  of  Baltimore,  540. 
Chew's  Estate,  In  re,  454. 
Chicago   Anderson   Pressed-Brick   Co. 

v.  Sobkowiak,  629.  630. 
Chicago,  B.  &  Q.  R.  Co.  v.  Abend,  609. 
Chicago,  B.  &  Q.  R.  Co.  v.  Avery,  607, 

614,   626. 
Chicago,  B.  &  Q.  R.  Co.  v.  Dickson, 

651. 

Chicago,  B.  &  Q.'  R.  Co.  v.  Dunn,  109. 
Chicago,  B.  &  Q.  R.  Co.  v.  McLallen, 

612. 
Chicago,  B.  &  Q.  R.  Co.  V.  Merckes, 

617. 

Chicago  City  R.  Co.  v.  McMahon,  646. 
Chicago  City  R.  Co.  v.  Wilcox,  523. 
Chicago  Drop  Forge  &  Foundry  Co.  v. 

Van  Dam,  620. 
Chicago  Great  Western  R.  Co.  v.  Crot- 

ty,  619. 
Chicago.  I.  &  L.  Ry.  Co.  v.  Barker, 

625,   631. 


Chicago,  K.  &  W.  R.  Co.  v.  Blevius, 

608. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Riley, 

617. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Ross, 

628,   631. 
Chicago  Rys.  Co.  v.  Industrial  Board, 

637. 
Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Bennett, 

653. 
Chicago,   St.  P,,  M.  &  O.  Ry.  Co.  v. 

Lundstrom,  630. 
Chicago  Telephone  Co.  v.  Schulz,  476, 

495. 

Chicago  &  A.  R.  Co.  v.  Becker,  521. 
Chicago  &  A.  R.  Co.  v.  Mahoney,  (J09. 
Chicago  &  A.  R.  Co.  v.  Walters,  617. 
Chicago  &  E.  I.  R.  Co.  v.  Kimmel,  622, 

630. 

Chicago  &  E.  R.  Co.  v.  Flexman,  650. 
Chicago  &  M.  Electric  R.  Co.  v.  Kremp- 

el,  108,  112. 
Chicago  &  N.  W.  R.  Co.  v.  Jackson, 

607. 
Chicago  &  N.  W.  R.  Co.  v.  Moranda, 

611,  632,  633. 
Chicago  &  N.  W.  R.  Co.  v.  Scheuring, 

608. 
Chickering-Chase   Bros.   Co.   v.   L.   J. 

White  &  Co.,  84. 
Chilcott  v.  Trimble,  323. 
Child  v.  Detroit  Mfg.  Co.,  602. 
Childress  v.  Cutter,  302. 
Childress  v.  State,  463,  464. 
Childs  v.  Childs,  256. 
Chiles  v.  Drake,  50. 
Chilson  v.  Philips.  356,  362. 
Chinn  v.  State,  27. 
Chipchase  v.  Chipchase,  265. 
Chipley  v.  Atkinson,  644,  645. 
Chirac  v.  Chirac's  Lessee,  566,  568. 
Chittenden  v.  Chittenden,  32. 
Choctaw,  O.  &  G.  R.  Co.  v.  Doughty, 

628. 

Choctaw,  O.  &  G.  R.  Co.  v.  Jones,  619. 
Choen  v.  Porter,  101. 
Choice  v.  State,  558. 
Chopin  v.  Combined  Locks  Paper  Co., 

610. 

Chopin  v.  Paper  Co.,  613. 
C'horn  v.  Chorn's  Adm'r,  198. 
Chorpenning,  Appeal  of,  418,  419. 
Christensen  v.  Johnston,  102. 
Christian   v.   Hanks,  217. 
Christian  berry  v.  Christianberry,  284. 
Christiansen,  In  re,  292. 
Chubb  v.  Bradley,  313. 
Church  v.  Church,  283. 


CASES  CITED 
[Tbe  figures  refer  to  pages] 


671 


Church  v.  McLennan,  148. 

Church  v.  Rosenstein,  543. 

Church  v.  Winchester  Repeating  Arms 

Co.,  631. 

Churchill  v.  Jackson,  399. 
Churchill  v.  White,  526. 
Cicotte  v.  Catholic  Church,  576. 
Cincinnati,  H.  &  D.  R.  Co.  v.  McMul- 

len,  626,  627. 
Cincinnati,  I.  &  C.  R.  Co.  v.  Clarkson, 

606. 
Cincinnati   Traction   Co.   v.  Pierman, 

627. 
Citizens'  Loan  &  Trust  Co.  v.  Witte, 

199 
Citizens'   Sav.  Bank  &  Trust  Co.  v. 

Jenkins,  150. 
Citizens'  State  Bank  of  Wood  River  v. 

Smout,  207. 

Citizens'  St.  R.  Co.  v.  Twiname,  111. 
City  Nat  Bank  v.  Dresdner  Bank  of 

Bremen,    567. 

City  Nat.  Bank  v.  Hamilton,  187. 
City  of  Albany  v.  Lindsey,  376. 
City  of  Austin  v.  Colgate,  428. 
City  of  Bloomington  v.  Annett,  109. 
City  of  Chadron  v.  Glover,  109. 
City  of  Chicago  v.   Major,   377. 
City  of  Indianapolis  v.  Ely,  583. 
City  of  Jacksonville  v.   Allen,  597; 
City  of  Milwaukee  v.  Althoff,  641. 
City  of  New    York    v.    Chelsea  >  Jute 

Mills,  462. 
City  of  San  Antonio  v.  Wildenstein, 

151. 

Cizek  v.  Cizek,  243. 
Clague  v.  Clague,  277,  280,  281. 
Clanton's    Estate    and    Guardianship, 

In   re,   536. 
Clapp  v.  Clapp,  283. 
Clapp  v.  Fullerton,  554. 
Clapp  v.  Inhabitants,  133,  141. 
Claridge  v.   Evelyn,  467.  ' 

Clark,  Case  of,  599. 
Clark,  In  re,  409. 
Clark   v.  Baker,   199. 
Clark  v.  Barney,  52,  53. 
Clark   v.   Bayer,   350,   353,    372,   374, 

376. 

Clark  v.  Burnside,  436. 
Clark  v.  Clark,  32,  149. 
Clark  v.  Field,  7,  13,  48,  60. 
Clark  v.  Fitch,  364,  371,  380,  381. 
Clark  v.  Fosdick,  240. 
Clark  v.  Garfleld,  434,  435. 
Clark  v.  Gilbert,  594. 
Clark  v.  Goddard,  476. 
Clark  v.  Kidd,  502. 


Clark  v.   Koehler,   648. 

Clark  v.  Manchester,  598. 

Clark  v.  Marsiglia,  587. 

Clark  v.  Miller,  184. 

Clark  v.  Montgomery,  410. 

Clark  v.  Norwood,  153. 

Clark  v.  Pendleton,  227. 

Clark  v.  Railroad  Co.,  654. 

Clark  v.   Smith,  386,   454. 

Clark  v.  Tate,  507. 

Clark  v.  Tenneson,  180. 

Clark  v.  Turner,  468. 

Clark  v.  Van  Court,  505. 

Clark's  Ex'r  v.  Trail's  Adm'rs,  535. 

Clarke,  Appeal  of,  140. 

Clarke  v.  Burke,  180. 

Clarke  v.  Cordis,  407. 

Clarke  v.  Leslie,  479,  482. 

Clarke  v.  McCreary,  197. 

Clarke  v.   Morey,   567. 

Clarkson  v.  Hatton,  317. 

Clarkson  v.  Washington,  42,  50. 

Clary  v.  Spain,  467. 

Clauer,  Appeal  of,  301. 

Clawson  v.  Doe,  507. 

Claxton  v.  Pool,  101. 

Clay  v.  Clay,  431,  434. 

Clay  v.  Shirley,  362. 

Clayton  v.  Haywood,  62. 

Clayton  v.  McKinnon,  424. 

Clayton  v.  Wardell,   43. 

Clegg  v.  Seaboard  Steel  Casting  Co., 

610,  624,  626. 
Clem  v.  Holmes,  381. 
Clement,  Appeal  of,  453,  454. 
Clement  v.  Mattison,  20,  177,  260. 
Clements,  In  re,  315. 
Clements   v.    Elizabeth   City   Electric 

Light  &  Power  Co.,  608. 
Clemmer  v.  Price,  474,  477,  488,  494. 
Cleveland,  C.  C.  &  St.  L.  Ry.  Co.  v. 

Austin,  624. 
Cleveland,  C.  C.  &  St.  L.  Ry.  Co.  v. 

Jenkins,  601. 
Cleveland,  C.  C.  &  St.  L.  Ry.  Co.  v. 

Osgood,  566. 
Cleveland,  C.  C.  &  St.  L.  Ry.  Co.  v. 

Scott,  633. 
Cleveland,  C.  &  C.  R.  Co.  v.  Keary, 

630. 

Clifton  v.  Clifton,  80. 
Clinchfield  Coal  Corporation  v.  Redd, 

652. 

Clinton  v.  Clinton,  253. 
Clisby  v.  Clisby,  81. 
Clopton  v.  Clopton,  217. 
Close  v.  Close,  251,  253. 
Clossman  v.  Lacostt,  599. 
Clothier  v.  Sigle,  -176. 


672 


CASES  CITED 
[The  figures  refer  to  pages] 


Cloud  v.  Hamilton,  362. 

Clouser  v.  Clapper,  122. 

Clow  v.  Brown,  235. 

Clow  v.  Chapman,  120. 

Clowes  v.  Clowes,  265. 

Clyde  v.  Steger  &  Sons  Piano  Mfg. 
Co.,  494. 

Coad  v.  Coad,  2,  8,  43,  50. 

Coakley   v.   Coakley,   326. 

Coal  Belt  Electric  B.  Co.  v.  Young, 
647. 

Coal  Creek  Mining  Co.  v.  Davis,  618. 

Coates  v.  Wilson,  484. 

Cobb  v.  Klosterman,  466. 

Cochran  v.  Cochran,  275,  281,  360. 

Cochran  v.  State,  558. 

Cochrane,  In  re,  78. 

Cockrill  v.  Cockrill,  556. 

Cocksedge  v.  Cocksedge,  283. 

Cody  v.  Longyear,  626. 

Coe  v.  Hill,  5,  6. 

Coe  v.  Moon,  504,  512,  516. 

Coe  v.  Sloan,  466. 

Coe  v.  Smith,  605. 

Coffin  v.   Dunham,   180. 

Coffin  v.  Landis,  583. 

Coggins  v.  Flythe,  429,  443. 

Cogley  v.  Cushman,  493,  508. 

Cohen  v.  Cohen,  6,  243,  566. 

Cohen  v.  New  York  Mut.  Life  Ins. 
Co.,  568. 

Colbert  v.  Daniel,  128. 

Colbert  v..  Rings,  218,  223. 

Cole  v.  American  Baptist  Home  Mis- 
sion Soc.,  217,  221. 

Cole  v.  Cole,  18,  20,  255. 

Cole  v.  Cole's  Ex'rs,  150. 

Cole  v.  Durham,  652. 

Cole  v.  Pennoyer,  474,  475. 

Cole  v.  Searfoss,  521. 

Cole  v.  Seeley,  184,  477. 

Cole  v.  Shurtleff,  183,  184. 

Cole  v.  Van  Riper,  194,  202,  208. 

Cole  Bros.  v.  Wood,  627. 

Coleman  v.  Burr,  127. 

Coleman  v.  Coleman,  18,  160,  260. 

Coleman  v.  Commissioners  of  Lunatic 
Asylum,  534. 

Coleman  v.  James,  50. 

Coleman  v.  Swick,  317. 

Coleman  v.  White,  121. 

Coles,  In  re,  164. 

Coles  v.  Trecothick,  225,  226. 

Collamore  v.  Learned,  311,  312. 

Collar  v.   Patterson,   577. 

Collett  v.  Collett,  250,  283. 

Collett  v.  Houston  &  T.  C.  R.  Co., 
152. 

<vollier  v.  Doe  ex  dem.  Alexander,  206. 


Collins  v.  Bauman,  215. 

Collins  v.  Collins,  217,  241,  351, 

Collins  v.  Gifford,  526. 

Collins  v.  Gooch,  426,  434. 

Collins  v.  Mitchell,  176. 

Collins  v.  Pecos,  613. 

Collins  v.  State,  558. 

Collins  v.  Wassell,  188. 

Colly  v.  Thomas,  379. 

Collyer  v.  Collyer,  577. 

Collyer  v.  Moulton,  587. 

Colombine  v.  Penhall,  222. 

Colonial  Bldg.  &  Loan  Ass'n  v.  Grif- 
fin, 211. 

Colonial,  etc.,  Mortgage  Co.  v.  Brad- 
ley, 205. 

Colorado  Mill  &  Elevator  Co.  v.  Mit- 
chell, 635. 

Colt  v.  Colt,  469,  470. 

Coltman  v.  Hall,  408. 

Columbian  Enameling  &  Stamping 
Co.  v.  Burke,  607,  608. 

Columbus,  C.  &  I.  C.  Ry.  Co.  v. 
Troesch,  608,  611. 

Columbus  R.  Co.  v.  Wooldolk,  647. 

Columbus  &  W.  Ry.  Co.  v.  Bradford, 
633. 

Colvin  v.  Currier,  195,  209. 

Colvin's  Estate,  In  re,  451. 

Combs  v.  Combs,  58. 

Combs  v.  Hawes,  508. 

Combs  v.  Jackson,  397. 

Combs  v.  Rountree  Const.  Co.,  616. 

Comer  v.  Comer,  391. 

Comes  v.  Lamson,  579. 

Com.  v.  Addicks,  348,  349. 

Com.  v.  Baird,  601. 

Com.  v.  Barney,  353. 

Com.  v.  Barry,  80. 

Com.  v.  Blaker,  340. 

Com.  v.  Boyer,  64. 

Com.  v.  Briggs,  349. 

Com,,  v.  Burk,  91. 

Com.  v.  Butler,  91. 

Com.  v.  Coffey,  340,  341. 

Com.  v.  Daley,  90,  91,  92. 

Com.  v.  Demott,  349. 

Com.  v.  Eagan,  92. 

Com.  v.  Farmers'  &  Shippers'  Tobacco 
Warehouse  Co.,  54. 

Com.  v.  Fee,  305,  306. 

Com.  v.  Feeney,  91. 

Com.  v.  Gamble,  478. 

Com.  v.  Graham.  68,  70,  71,  360. 

Com.  v.  Green,  531. 

Com.  v.  Hamilton,  325. 

Com.  v.  Hartnett,  93. 

Com.  v.  Hawkins,  557. 

Com.  v.  Heath,  549. 


CASES  CITED 
[The  figures  refer  to  pages] 


673 


Com.  v.  Lane,  68,  69. 

Com.  v.  Lee,  330,  415. 

Com.  v.  Lynes,  471. 

Com.  v.  McAfee,  80,  94. 

Com.  v.  Mead,  530. 

Com.  v.  Munsey,  91,  92,  98. 

Com.  v.  Murray,  355,  478. 

Com.  v.  Nance,  462. 

Com.  v.  Nancrede,  316. 

Com.  v.  Neal,  90,  91. 

Com.  v.  Ferryman,  28,  66. 

Com.  v.  Powell,  462. 

Com.  v.  Richards,  240. 

Com.  v.  Rogers,  550. 

Com.  v.  Seed,  341,  342. 

Com.  v.  Strickland,  346. 

Com.  v.  Stump,  44,  49,  50. 

Com.  v.  Whitney,  268. 

Com.  v.  Wills,  462. 

Com.  v.  Wormser,  462. 

Compton  v.  Benham,  51. 

Conant  v.  Burnham,  181. 

Conant  v.  Conant,  283. 

Conant  v.  Kendall,  455. 

Concord  Bank  v.  Bellis,  165. 

Condon  v.  Churchman,  448. 

Condon  v.  Railway  Co.,  377. 

Cone  v.  Cross,  577. 

Cone  v.  Railway  Co.,  607. 

Conger  v.  Conger,  263. 

Congrave  v.  Southern  Pac.  R.  Co.,  633. 

Congreve  v.  Smith,  654. 

Conine  v.  Olympia  Logging  Co.,  622. 

Conkey  v.  Dickinson,  444. 

Conklin  v.  Thompson,  524. 

Conkling  v.  Doul,  163. 

Conkling  v.  Levie,  199,  207. 

Conley  v.  Nailor,  555. 

Conlin  v.  Conlin,  264. 

Conn  v.  Boutwell,  507,  517. 

Conn  v.  Coburn,  482,  483. 

Conn  v.  Conn,  324,  327. 

Connell  v.  Moore,  406. 

Connella  v.  Connella,  242. 

Connelly   v.   Michigan   Cent.   R.  Co., 

638. 

Connelly  v.  Weatherly,  451. 
Connelly  Mfg.  Co.  v.  Wattles,  602. 
Conner,  In  re,  406. 
Connolly  v.  Connolly,  245. 
Connolly  v.  Reed,  564,  565. 
Connor  v.  Berry,  184. 
Connor  v.  Stanley,  224. 
Connors  v.  Connors,  38,  39. 
Connors  v.  Justice,  589. 
Conover,  In  re,  458. 
Conrad  v.  Abbott,  171. 
Conrad  v.  Charles  A.  Stevens  &  Bros., 

610. 

TIFF.P.&  D.REL.(3o  ED.)— 43 


Conrad  v.  Lane,  490. 

Conron  v.  Cauchois,  199. 

Conroy  v.  Morrill  &  Whiton  Const. 
Co.,  607. 

Consolidated  Arizona  Smelting  Co.  v. 
Ujack,  637. 

Consolidated  Coal  Co.  of  St.  Louis  v. 
Haenni,  619. 

Consumers'  Lignite  Co.  v.  James,  596. 

Converse's  Ex'r  v.  Converse,  552. 

Conway  v.  Beazley,  69. 

Conway  v.  Clark,  470. 

Conway  v.  Nicol,  121. 

Conway  v.  Reed,  524. 

Conway  v.  Smith,  161,  195,  208,  213. 

Cook  v.  Bartlett,  382. 

Cook  v.  Bybee,  344,  352. 

Cook  v.  Cook,  34,  252,  263,  290. 

Cook  v.  MeCabe,  594. 

Cook  v.  Wood,  122. 

Cooke  v.  Beale,  454. 

Cooke  v.  Bremond,  153. 

Cookson  v.  Toole,  195,  208,  213. 

Cooley  v.  Dewey,  307. 

Cooley  v.  Powers,  309. 

Cooley  v.  Stringfellow,  330,  389. 

Coombs  v.  Cordage  Co.,  609,  613,  619. 

Coombs  v.  Read,  196. 

Coon  v.  Moffet,  380,  384. 

Cooner  v.  May,  391. 

Cooper,  In  re,  453,  454. 

Cooper  v.  Burel,  205. 

Cooper  v.  Cooper,  117,  149,  253,  254, 
264. 

Cooper  v.  Crane,  15. 

Cooper  v.  Haseltine,  180. 

Cooper  v.  Lloyd,  177. 

Cooper  v.  Lowery,  652. 

Cooper  v.  Simmons,  484. 

Cooper  v.  State,  601. 

Cooper  v.  Strong  &  Warner  Co.,  586. 

Cooper  v.  Witham,  99. 

Cope  v.  Cope,  299,  302. 

Copeland  v.  Copeland,  14,  62,  63,  64. 

Copeland  v.  Jordan,  132. 

Copley  v.  O'Neil,  435. 

Copp  v.  Copp,  399,  453,  454,  455. 

Coppedge  v.  Threadgill,  137. 

Copsey  v.  Copsey,  278. 

Coral  Ridge  Clay  Products  Co.  v.  Col- 
lins, 609. 

Corbett  v.  Sloan,  199,  233. 

Corbett  v.  Spencer,  506. 

Corbin  v.  American  Mills,  653. 

Corcoran  v.  Allen,  434. 

Corcoran  v.  Holbrook,  626,  629. 

Corcoran  v.  Kostrometinoff,  426. 

Corcoran  v.  Renehan,  431. 

Cordes  v.  Miller,  593. 


674 


CASES  CITED 
[The  figures  refer  to  pages] 


Cordova,  In  re,  406. 

Core  v.  Railroad  Co.,  627. 

Corgan  v.  Geo.  F.  Lee  Coal  Co.,  582, 

592,  593. 

Corigsby  v.  Reib,  8. 
Cork  &  B.  Ry.  Qo.  v.  Cazenove,  490. 
Corker  v.  Corker,  214. 
Cormack  v.  Marshall,  345,  352. 
Cormick's  Estate,  In  re,  127- 
Cornella  v.  Ellis,  483. 
Cornish  v.   Cornish,  264. 
Corpe  v.  Overton,  514,  518. 
Corrie  v.  Corrie,  345,  347. 
Corrigan  v.  Eiernan,  398. 
Cort  v.  Lassard,  600. 
Corwin's  Appeal,  406. 
Cory  v.  Cook,  126. 
Cory  v.  Gertcken,  528. 
Cosgrove  v.  Ogden,  647,  648. 
Cosio  v.  Antonio,  301. 
Costigan  v.  Railroad  Co.,  597. 
Cothran  v.  Lee,  171,  180. 
Cotteen  v.  Missing,  231. 
Gotten  v.  Friedman,  151. 
Cotter  v.  Cotter,  243,  392. 
Cotton  v.  Cotton,  155. 
Cotton  v.  State,  458. 
Cotton's  Guardian  v.  Wolf,  452. 
Coughlan  v.  Philadelphia,  B.  &  W.  R, 

Co.,  613,  614. 

Coughtry  v.  Woolen  Co.,  623. 
Coulter   v.    Hermitage   Cotton   Mills, 

109. 
Coulter  Dry  Goods  Co.   v.  Munford, 

172. 

Council  v.  Pridgen,  164,  203. 
Coursey  v.  Coursey,  251. 
Coursolle  v.  Weyerhauser,  474. 
Courtois  v.  King  Paper  Co.,  633. 
Courtright  v.  Courtright,  70,  324,  327. 
Cousen  v.  Cousen,  251. 
Cousins  v.  Boyer,  325,  331. 
Coutts  v.  Greenhow,  222. 
Covault  v.  Nevitt,  473,  492,  524. 
Covel  v.  Turner,  576,  577. 
Covenhoven,  In  re,  534. 
Covey  v.  Leslie,  419,  426. 
Covey  v.  Neff,  424.' 
Covington  v.  Leak,  428,  434. 
Covington  St.  Ry.  Co.  v.  Packer,  377. 
Cowan  v.  Anderson,  469. 
Cowan  v.  Musgrave,  577. 
Cowden  v.  Cowden,  391. 
Cowden  v.  Wright,  367,  368,  375. 
Cowie  v.  Strohemeyer,  466. 
Cowles  v.  Cowles,  251,  259. 
Cowley  v.  People,  462. 
Cowls  v.  Cowls,  345,  347,  351,  453. 


Cox,  In  re,  637. 

Cox  v.  Boyce,  393. 

Cox  v.  Cox,  264. 

Cox  v.  Hoffman,  169. 

Cox  v.  Keahey,  649. 

Cox  v.  Manvel,  438. 

Cox  v.  Osage  County,  534. 

Cox  v.  Rash,  309. 

Cox  v.  St.  Louis,  M.  &  S.  B.  R.  Co., 

110. 

Cox  v.  Scott,  133. 
Cox's  Adm'r  v.  Wood,  212. 
Coy  v.  Humphreys,  3. 
Cozard  v.  Cozard,  278. 
Cozine  v.  Horn,  404. 
Cozza,  In  re,  311,  313,  316. 
Crabtree  v.  May,  504. 
Craig  v.  Bradley,  149. 
Craig  v.  Leslie,  565. 
Craig  v.  Shea,  296. 
Craig  v.  Van  Bebber,  502,  507,  512. 
Craighead  v.  Wells,  509. 
Craker  v.  Railway  Co.,  650. 
Cram  v.  Burnham,  53. 
Cramsey  v.  Sterling,  50. 
Crane,  In  re,  72. 
Crane  v.  Crane,  9,  11. 
Crane  v.  Gough,  226. 
Crane  v.  Meginnis,  292. 
Crane  v.  Reeder,  561,  564. 
Crane  v.   Stafford,  469. 
Cranston  v.  Cranston,  196. 
Crapps  v.  Smith,  23. 
Crashley  v.  Press  Pub.  Co.,  563. 
Crawford  v.  Crawford,  403. 
Crawford  v.  Mail  &  Express  Pub.  Co., 

582. 

Crawford  v.  State,  35. 
Creagh  v.  Tunstall,  536. 
Creasey  v.  Creaseyj  260. 
Creed  v.  Hartmann,  654. 
Cregan  v.  Marston,  623. 
Crehore  v.  Crehore,  12. 
Cresinger  v.  Welch's  Lessee,  506. 
Creuze  v.  Hunter,  418. 
Crewe  v.  Crewe,  276,  277. 
Crew-Levick  Co.  v.  Hull,  487. 
Crickett  v.  Hardin,  62. 
Grim  v.  Grim,  283. 
Crisfleld  v.  Banks,  83. 
Crispin  v.  Babbitt,  625. 
Criswell  v.  Criswell,  494. 
Cri  swell  v.  Noble.  565. 
Critchfield  v.  Easterday,  538. 
Croan  v.  Phelps'  Adm'r,  307,  308. 
Crochet  v.  McCamant,  150. 
Crocker  v.  Crocker,  118. 
Crockett  v.  Calvert,  651. 


CASES  CITED 
[The  figures  refer  to  pages] 


675 


Crombie  v.  McGrath,  572. 

Cromwell  v.  Benjamin,  175. 

Cronemillar  v.  Duluth-Superior  Mill- 
ing Co.,  584,  596. 

Cronise  v.  Cronise,  292. 

Crook  v.  Hill,  306. 

Crooks  v.  Crooks,  232. 

Crooks  v.  Turpen,  401. 

Croom  y.  Whitehead,  300. 

Cropper  v.  Bowles,  198,  203. 

Cropsey  v.  McKinney,  128,  163. 

Crosbie  v.  Hurley,  467. 

Crosby,  In  re,  442. 

Crosby   v.  Ardoin,  496. 

Crosby  v.  Clem,  160. 

Crosby  v.  Crosby,  409. 

Crosby  v.  Cubs  R.  Co.,  620. 

Crosby  v.  Merriam,  431. 

Crosby  v.  Otis,  128,  129. 

Crosby  v.  Waters,  209. 

Crose  v.  Rutledge,  120. 

Cross,  In  re,  404. 

Cross  v.  Armstrong,  289. 

Cross  v.  Boston  &  M.  R.  Co.,  614. 

Cross  v.  Cross,  290,  296,  297,  298,  300. 

Cross  v.  Kent,  546. 

Crossman  v.  Grossman,  261. 

Crosswell's  Petition,  In  re,  442. 

Crostwaight  v.  Hutchinson,  215,  216. 

Crounse  v.  Crounse,  257,  262,  266. 

Crouse  v.  Wheeler,  72. 

Crow  v.  Crow,  264. 

Crowell,  Appeal  of,  401. 

Crowley  v.  Crowley,  160. 

Crowley  v.  Pacific  Mills,  614,  617. 

Crowley  v.  Savings  Union  Bank  & 
Trust  Co.,  234. 

Cruger  v.  Heyward,  330. 

Crum  v.  Sawyer,  205. 

Crumb,  Ex  parte,  452,  453. 

Crumlish  v.  Security  Trust  &  Safe 
Deposit  Co.,  215,  224. 

Crump  v.  Guyer,  474. 

Crump  v.  Morgan,  21,  59,  60,  244. 

Crusoe  v.  Clark,  605. 

Crutchfield,  Ex  parte,  406. 

Cruzen  v.  McKaig,  164. 

Cuckson  v.  Stones,  594. 

Cudahy  Packing  Co.  v.  Wesolowski, 
614. 

Cuff  v.  Railroad  Co.,  654. 

Culberhouse  v.  Hawthorne,  205. 

Culberson  v.  Alabama  Const  Co..  "62. 

Gullen  v.  Norton,  629. 

Culp  v.  Lee,  428. 

Culp  v.  Stanford,  457. 

Culp  v.  Wilson,  391. 

Cumberland  Pipe  Line  Co.  v.  Howard, 
436. 


Cuming  v.  Brooklyn  City  R.  Co.,  369, 
372,    374. 

Gumming  v.  Gumming,  277,  283,  286, 
287. 

Cummings  v.  Cummings,  444. 

Cumner  Parish  v.  Milton  Parish,  393. 

Cunningham  v.  Adna  Mill.  Co.,  633. 

Cunningham   v.   Cunningham,   32,   71, 
401. 

Cunningham  v.  Fonblanque,  589. 

Cunningham  v.  Irwin,  177. 

Cunningham  v.  Northwestern  Improve- 
ment Co.,  637. 

Cunningham  v.  R.  Co.  525. 

Cunningham  v.  Reardon,  182. 

Cunningham  v.  Robison,  519. 

Cupples'  Estate,  In  re,  316. 

Cuppy  v.  Stollwerck  Bros.,  584. 

Curd  v.  Doods,  99. 

Cureton  v.  Cureton,  83. 

Cureton  v.  Moore,  184. 

Curlee  v.  Reigler,  604. 

Curlew  v.  Jones,  309. 

Currier  v.  Teske,  232. 

Curry  v.  Curry,  576,  577. 

Curry  v.  Fulkinson's  Ex'rs,  133,  139. 

Curtice  Co.  v.  Kent,  518. 

Curtin  v.  Patton,  504. 

Curtis  v.  Brownell,  538. 

Curtis  v.  Crowe,  149,  201,  204. 

Curtis  v.  Curtis,  353. 

Curtis  v.  Dinneen,  103. 

Curtis  v.  Dodd  &  Struthers,  585. 

Curtis  v.  Engel,  163. 

Curtis  v.  Union  Homestead  Ass'n,  442. 

Ourtis  Shumway  v.  Williams,  622. 

Cushman  v.  Cushman,  21,  22,  283. 

Cussons  v.  Skinner,  593. 

Cuthbertson  v.  State,  77. 

Cutter  v.  Powell,  588,  604. 

i 

D 

D  v.  A,  29. 

Dacey  v.  People,  550. 

Dade  v.  Alexander,  129. 

Daggy  v.  Miller,  524. 

Dagley,  Ex  parte,  536. 

Dagley  v.  Tolferry,  386. 

D'Aguilar  v.  D'Aguilar,  251,  277,  278, 

279,  280. 

Daiger  v.  Daiger,  253.  256. 
Dailey  v.  Houston,  96,  97. 
Dailey  v.  Singer  Mfg.  Co.,  207. 
Daily  v.  Maxwell,  336. 
Daily    Telegraph    Newspaper   Co.    v. 

McLaughlin,    539. 
Daimwood  v.   Driscoll,   495. 
Dain  v.  Wycoff,  371,  379,  382. 


676 


CASES  CITED 
[The  figures  refer  to  pages] 


Dale  v.  Marvin,  86. 

Dale  v.  Robinson,  190,  192. 

Daley  v.  Norwich  &  W.  R.  Co.,  523. 

Dallas  v.   Heard,  188. 

Dallas  v.  Hollingsworth,  505,  517. 

Dallman  v.  Dallman,  34. 

Dalrymple  v.   Dalrymple,  45,  48,   71. 

Dalton  v.  Bradley  Lumber  Co.,  519. 

Dal  ton  v.  Dregge,  120,  121. 

Daly  v.  Smith,  600. 

Damarell  v.  Walker,  453. 

Damron  v.  Ratliff,  492,  494,  502. 

Dana  v.  Coombs,  503. 

Dana  v.  Short,  596. 

Dance  v.  Dance,  280. 

Dance  v.  McBride,  121. 

Danenhoffer  v.  State,  340. 

Daniel  v.  Atlantic  Coast  Line  R.  Co., 
357,  362. 

Daniel  v.  Daniel,  130. 

Daniel  v.  Hill,  393,  417. 

Daniel  v.  Newton,  405. 

Daniel  v.  Sams,  42. 

Daniel  v.  Swearengen,  643,  644. 

Daniel  v.  Tolon,  326. 

Daniels  v.  Johnston,  615. 

Danley  v.  Rector,  388. 

Darby  v.  Stribling,  430. 

Darden  v.  Wyatt,  396,  406. 

Dare  v.  Dare,  32,  34. 

Dargie's  Estate,  In  re,  152. 

Darley  v.  Darley,  330. 

Darling  v.  Dent,  53,  68. 

Darling's  Estate,  In  re,  317,  318. 

Darlington  v.  Hamilton  Bank,  476, 
494. 

Darraugh  v.  Blackford,  502. 

Darrigan  v.  Railroad  Co.,  628. 

Darrow  v.  Darrow,  37. 

Date  v.  New  York  Glucose  Co.,  612. 

Daughterty  v.  Reveal,  472,  524. 

Davenport  v.  Davenport,  260,  266,  302. 

Davenport   v.    Olmstead,   448. 

Davidson  v.  Abbott,  376,  383,  384, 

Davidson  v.  Cornell,  617,  619. 

Davidson  v.  Goodall,  376,  384. 

Davidson  v.  Graves,  222,  376. 

Davidson  v.  Hutchins,  439. 

Davidson  v.  I.  M.  Davidson  Real  Es- 
tate &  Invest  Co.,  434. 

Davidson  v.  Ream,  39,  44,  48,  59,  68, 
69,  70. 

Davidson  v.  Wampler,  437. 

Davidson  v.  Young,  502,  504,  528. 

Davies  v.  Davies,  217. 

Davies  v.  Lockptt,  468. 

Davies  v.  'Williams!.  371. 

Davis,  Appeal  of,  130. 

Davis,  In  re,  61. 


Davis,  Succession  of,  302. 

Davis  v.  Baugh,  467. 

Davis  v.   Caldwell,   486. 

Davis  v.  Combs,  443. 

Davis  v.  Compton,  154. 

Davis  v.  Davis,  88,  155,  277,  278. 

Davis  v.  Dudley,  502. 

Davis  v.  Gray,  481. 

Davis  v.  Hagler,  448. 

Davis  v.  Harkness,  415. 

Davis  v.  Hall,  561. 

Davis  v.  Harman,  421. 

Davis  v.  Hudson,  407. 

Davis  v.  Krug,  316. 

Davis  v.  McGraw,  313. 

Davis  v.  Milford,  309. 

Davis  v.  Phillips,  538. 

Davis  v.  Pryor,  42,  47,  50. 

Davis  v.  Public  Service  Corp.,  109. 

Davis  v.  Railroad  Co.,  626,  634. 

Davis  v.  Rhame,  129. 

Davis  v.  Ritchey,  87. 

Davis  v.  State,  90,  91. 

Davis  v.  Stouffer,  46,  47,  48. 

Davis  v.  Whitlock,  10,  33,  51. 

Davis*  Adm'r  v.  Davis,  404,  454. 

Davoue  v.  Fanning,  419. 

Dawes  v.  Howard,  325. 

Dawson  v.  Helmes,  506,  511,  512. 

Dawson  v.  State,  557. 

Dawson's  Lessee  v.  Godfrey,  561,  564. 

Day  v.  American  Machinist  Press,  592. 

Day  v.  Burnham,  171. 

Day  v.  Caton,  576. 

Day  v.  Chicago,  M.  &  St  P.  R.  Co., 

630,  638. 

Day  v.  Day,  253,  255,  282. 
Day  v.  Everett,  356. 
Day  v.  Louisiana  Central  Lumber  Co., 

637. 

Dayton  v.  Dusenbury,  196. 
Dean  v.  Dean,  250. 
Dean  v.  Peel,  371. 
Dean  v.  State,  340,  341,  342. 
Deare  v.  Soutten,  181. 
Dearin  v.  Fitzpatrick,  136,  137. 
De  Baun  v.  Van  Wagoner,  191. 
De  Baun's  Ex'x  v.  De  Baun,  193,  202. 
Debenham    v.   Mellon,   170,   172,   173, 

174. 

De  Blane  v.  Lynch,  153. 
De  Brauwere  v.  De  Brauwere,  81,  82, 

181,  326. 
Decatur  Car  Wheel  Co.  v.  Terry,  615, 

617. 

Decell  v.   Lewenthal,   487. 
Deckard  v.  Macom,  326. 
Decker  v.  Keclley,  82. 
Decker  &  Bros.  v.  Moyer,  176. 


CASES  CITED 
[The  figures  refer  to  pages] 


677 


De  Cloedt  v.  De  Cloedt,  253. 
De  Constantin  v.  Public  Service  Com- 
mission,  641. 
Deese  v.  Deese,  167,  203. 
Deford  v.  State,  468. 
De  Forrest  v.  Wright,  653,  654. 
Defries  v.  Davis,  524. 
D.  E.  Hewitt  Lumber  Co.  v.  Cisco,  618. 
Deibekis  v.  Link-Belt  Co.,  636. 
Dejarnatte  v.  Allen,  141. 
De  Kay  v.  Oliver,  464. 
De  Lacey  v.  U.  S.,  566. 
Delaney  v.  Delaney,  273. 
Delaney  v.  Rochereau,  656. 
Delano  v.  Blake,  494,  501. 
Delaware,  L.  &  W.  R.  Co.  v.  Jones, 

112. 

De  Lesdernier  v.  De  Lesdernier,  268. 
Del  Genovese's  Wilf,  In  re,  32. 
Deller's  Estate,  In  re,  215,  216,  223, 

224. 

Delliber  v.  Delliber,  281. 
Dellow's  Estate,  In  re,  404. 
Delpit  v.  Young,  16. 
De  Manneville  v.  De  Manneville,  418. 
De  Marcellin,  In  re,  403. 
De  Mazar  v.  Pybus,  406. 
De  Meli  v.  De  Meli,  253. 
Deming  v.  Williams,  231. 
Dempsey  v.  Wells,  159. 
Den  ex  dem.  Hoyle  v.  Stowe,  506. 
Dengate   v.   Gardiner,  108,   109,   111, 

112. 

Denjson  v.  Cornwell,  409. 
Denison  v.  Denison,  41,  280. 
Dennett  v.  Dennett,  141,  538,  539. 
Dennis  v.  Clark,  324,  374. 
Dennis  v.  Perkins,  241. 
Dennison  v.  Dennison,  265. 
Dennison  v.  Page,  294,  300. 
Dennison  v.  Willcut,   429. 
Dennysville  v.  Trescott,  393. 
Dent  v.  Dent,  278. 
Denver  Dry  Goods  Co.  v.  Jester,  176. 
Denver  &  R.  G.  R.  Co.  v.  Sporleder, 

609. 
Denver  &  R.  G.  R.  Co.  v.  Warring, 

617. 

Derby  v.  Derby,  282. 
Derocher    v.    Continental    Mills,    509, 

515,  517,  578. 

Derosia  v.  Ferland,  598. 
Derry  v.  Duchess  of  Mazarine,  158. 
Descelles  v.  Kadmus,  176. 
Deshon  v.  Wood,  226. 
Desilver's  Estate,  In  re,  539. 
Des  Mond   v.  Kelly,  333. 
Despain   v.   Wagner,  234. 
De  Thoren  v.  Attorney  General,  50. 


Detrick,  Appeal  of,  253. 

Detroit  Lubricator  Co.  v.  Lavlgne  Mfg. 

Co.,  602. 

Deutsch  v.  Rohlfing,  194. 
Devanbagh  v.  Devanbagh,  29,  30,  244. 
Development   Co.   v.   King,   590. 
Devendorf  v.  Emerson,  175. 
Deveos  v.  Deveos,  265. 
Dever  v.  Seiz,  154. 
Devers  v.  Devers,  243. 
Devine  v.  American  Posting  Service, 

442. 

Devine  v.  Chicago  &  C.  R.  Co.,  621. 
Devlin  v.  Smith,  614. 
Devonish  v.   Imperial   Invest.    Corp., 

622. 

De  Vries  v.  Crofoot,  539,  544. 
De  Vry  v.  De  Vry,  260. 
Dew  v.  Clarke,  553. 
Dewey  v.  Detroit,  G.  H.  &  M.  Ry.  Co., 

627. 

Dewey  v.  School  Dist,  594. 
Dewitt  v.  Buchanan,  563. 
Dexter  v.  Booth,  175. 
Dexter  v.  Cranston,  439. 
Dexter  v.  Hall,  539. 
Dial  v.  Wood,  478. 
Diaper  v.  Anderson,  443. 
Dice  v.  Joliet  Mfg.  Co.,  602. 
Dick  v.  Grissom,  357,  360,  365. 
Dick  v.  Railroad  Co.,  632. 
Dickerson  v.  Bowen,  404,  405,  455. 
Dickerson  v.  Brown,  44,  ,45,  49. 
Dickerson  v.  Dickerson,  453. 
Dickerson  v.  Gordon,  510. 
Dickin  v.  Hamer,  145. 
Dickinson,  Appeal  of,  308. 
Dickinson  v.  Granberry,  634. 
Dickinson  v.  Norwegian  Plow  Co.,  578. 
Dickinson  v.  Talmage,  364. 
Dickinson  v.  Winchester,  387. 
Dickson  v.  Frisbee,  579. 
Diefenback  v.  Stark,  604. 
Dleringer  v.  Meyer,  592. 
Dierker  v.   Hess,  359,  365. 
Dies  v.  Winne,  48. 
Dietz  v.  Big  Muddy  Coal  &  Iron  Co., 

637. 

Dilk  v.  Keighley,  486. 
Dilley  v.  Henry's  Ex'r,  197. 
Dillon  v.  Dillon,  279. 
Dillon  v.  Lady  Mount  Cashell,  452. 
Di  Lorenzo  v.  Di  Lorenzo,  11. 
Dilts  v.  Stevenson,  231. 
Di  Marcho  v.  Iron  Foundry,  628. 
Dimpfel  v.  Wilson,  72,  271. 
Disborough  v.  Disborough,  253. 
Disbrow  v.  Durand,  577. 


078 


CASES  CITED 
[The  figures  refer  to  pages] 


Disbrow  p.  Henshaw,  453. 

Ditson  v.  Ditson,  3,  5,  244,  245,  287, 

289. 

Diver  v.  Diver.  149. 
Dixon,  In  re,  454. 
Dixon  v.  Hurrell,  178. 
Dixon  v.  Merrltt,  489,  506. 
Dixon  v.  People,  64. 
D.  M.  Smith's  Committee  v.  Forsythe, 

542. 

Doan  v.  Dow,  413,  414. 
Dobbin  v.  Cordiner,  99,  100. 
Dobbin  v.  Railroad  Co.,  629. 
Dobbins  v.  Dexter  Horton  &  Co.,  199. 
Dobbins  v.  Thomas,  206. 
Dobra  v.  Lehigh  Valley  Coal  Co.,  621. 
Docker  v.  Somes,  418. 
Dr.  S.  S.  Still  College  &  Infirmary  of 

Osteopathy  v.  Morris,  200. 
Dodd  v.  McCraw,  388. 
Dodge  v.  Dodge,  276. 
Dodge  v.  Rush,  114,  119,  122,  123. 
Dodson  v.  McAdams,  577. 
Dodson  v.  McKelvey,  428. 
Dodson-Braun  Mfg.  Co.  v.  Dix,  585. 
Doe  v.  Bates,  309. 
Doe  v.  Doe,  279. 
Doe  v.  Jackson,  439. 
Doe  v.  Manning,  237. 
Doe  v.  Polgrean,  139. 
Doe  v.  Reid,  357. 
Doe  v.  Robertson,  504. 
Doe  v.  Roe,  118,  123. 
Doerr  v.  Daily  News  Pub.  Co.,  625, 

629. 

Doerr  v.  Forsythe,  289. 
Doey  v.  Clarence  P.  Rowland  Co.,  635. 
Dohorty  v.  Madgett.  97. 
Doles  v.  Hilton,  519. 
Dollard  v.  Roberts.  368. 
Dolph  v.  Hand,  502. 
Dolphin  v.   Robins,  88. 
Donahoe  v.  Richards,  367. 
Donahue  v.  C.  H.  Buck  &  Co.,  624. 
Donald  v.  Ballard,  469. 
Donald  v.  Donald,  252. 
Donaldson  v.  State,  564,  565. 
Donegan  v.  Davis,  359.  360. 
Donehoo,  Appeal  of,  555. 
Donk  Bros.  Coal  &  Coke  Co.  v.  Retz- 

loff,  354,  360. 
Donk  Bros.  Coal  &  Coke  Co.  v.  Thil, 

624. 

Donley  v.  Donley,  268. 
Donlon  v.  Maley,  446. 
Donnelly  v.  Donnelly's  Heirs,  41. 
Donnelly  v.  Strong,  10,  11. 
Donnington  v.  Mitchell,  139. 


Donohue  v.  Donohue,  8,  68. 

Donovan,  Appeal  of,  212. 

Donovan  v.  Donovan,  12. 

Donovan  v.  Griffith,  147. 

Donovan  v.  Olson,  200. 

Doolittle  v.  Pacific  Coast  Safe  &  Vault 

Works,  584. 
Doran  v.  Smith,  527. 
Doran  v.  Thomson,  646. 
Dorgeloh  v.  Murtha,  8. 
Dorman  v.  Ogbourne,  406. 
Dorothy  v.  Salzberg,  526. 
Dorrance  v.  Dorrance,  175. 
Dorsey  v.  Goodenow,  180. 
Dorsey  v.  Kyle,  568. 
Dorsey  v.  Thompson,  567,  568. 
Dotson  v.  Faulkenburg,  146,  148. 
Doty  v.  Mitchell,  188. 
Dougherty  v.  Chicago,  M.  &  St.  P.  R. 

Co.,  647. 

Dougherty  v.  Kubat,  565. 
Dougherty  v.  Woodward,  336. 
Doughty  v.  Doughty,  289,  290. 
Doughty  v.  Penobscot  Log  Driving  Co., 

631. 

Douglas,  Appeal  of,  443. 
Douglas,  In  re,  414. 
Douglas  v.  Douglas,  150,  152,  153,  154. 
Douglas   v.   Nicholson,   202. 
Douglass  v.  Ferris,  448. 
Douglass  v.  Low,  448. 
Douglass  v.  Merchants'  Ins.  Co.,  577. 
Douischke  v.  Douischke,   12. 
Dow  v.  Eyster,  180. 
Dowdy  v.  Dowdy,  266. 
Dowling  v.  Allen,  521,  613. 
Dowling  v.  Feeley,  415. 
Downing  v.  Peabody,  438. 
Downing  v.   Stone,  516,  517. 
Doyle,  In  re,  536. 
Doyle  v.  Carney,  355. 
Doyle  v.  Doyle,  265. 
Drake  y.  Milton  Hospital  Ass'n,  301. 
Drake  v.  Wise,  499. 
Drake's  Lessee  v.  Ramsay,  495. 
Drane  v.  Bayliss,  445. 
Draper  v.  Draper,  345,  351. 
Draughn  v.  State,  39. 
Drawdy  v.  Hesters,  53. 
Dred  Scott  v.  Sandford,  568. 
Dreutzer  v.  Lawrence,  150,  201,  204, 

208. 

Drew  v.  Railroad  Co.,  646. 
Driscoll  v.  Carlin,  646. 
Droge  v.  John  R.  Robins  Co.,  622,  625. 
Drowne's  Estate,  In  re,  403. 
Drummond  v.  Drummond,  474. 
Drummond  v.  Irish,  32,  34. 


CASES  CITED 
[The  figures  refer  to  pages] 


679 


Drury  v.  Foster,  157. 

Drybutter  v.  Bartholomew,  141. 

Duart  v.  Simmons,  637. 

Dube  v.  Lewiston,  629. 

Dublin  &  W.  R.  Co.  v.  Black,  490. 

Dubois  v.  Jackson,  196. 

Dubose  v.  Wheddon,  482. 

Duckett  v.  Pool,  643. 

Duckworth  v.  Johnson,  377. 

Dudley  v.  Dudley,  72,  470. 

Duenser  v.  Supreme  Council  of  Royal 

Arcanum,  32. 
Duff  v.  Russell,  600. 
Duffee  v.  Boston  Elevated  R.  Co.,  108, 

^10. 

Duffies  v.  Duffies,  118. 
Duffy  v.  McHale,  426. 
Duffy  v.  Upton,  628. 
Duffy  v.  Williams,  413. 
Duffy  v.  Yordi,  392. 
Dufield  v.  Cross,  356,  368. 
Duke  v.  Duke,  244. 
Duke  of  Beaufort  v.  Berty,  418. 
Dull  v.  Bramhall,  605. 
Dull's  Estate,  In  re,  320. 
Dumain  v.  Gwynne,  344,  353. 
Dumaresly  v.  Fishly,  38,  39,  44,  48, 

52,  67. 

Dumond  v.  Magee,  136,  137. 
Dunbarton  v.   Franklin,  41. 
Duncan  v.  Duncan,  45,  48,  52,  53,  110. 
Duncan  v.  Pope,  306. 
Dundas  v.  Dutens,  226,  227. 
Dunham  v.  Dunham,  288,  289. 
Dunkell  v.  Simons,  589,  590. 
Dunkin  v.  Seifert,  345,  350. 
Dunks  v.  Grey,  335,  337. 
Dunlap  v.  Allen,  576. 
Dunlap  v.  Hill,  216,  217. 
Dunlap  v.  Robinson,  466. 
Dunlap  v.  Squires,  15-1. 
Dunn  v.  Altman,  357. 
Dunn  v.  Cass  Ave.  &  F.  G.  R.  Co.,  372, 

373. 

Dunn  v.  Clingham,  444. 
Dunn  v.  Dunn,  251. 
Dunn  v.  Means,  318. 
Dunn  v.  Nicholson,  607. 
Dunn  v.  People,  549. 
Dunn  v.  Sargent,  135,  196,  197. 
Dunn  v.  S  towers,  205. 
Dunphy  v.  Dunphy,  18,  20. 
Dunscomb  v.  Dunscomb,  431. 
Dunton  v.  Brown,  473,  475,  493. 
Dupont  v.  Jonet,  147. 
Du  Pont  Co.  v.  Waddell,  589. 
Du  Pont  De  Nemours  &  Co.  v.  Hipp, 

614. 


Dupre  v.  Boulard's  Ex'r,  70. 

Durant  v.  Durant,  277,  278,  279,  281. 

Durant  v.  Ritchie,  166. 

Durant  v.  Titley,  240. 

Durden  v.  Barnett,  368,  374, 

Duren  v.  Getchell,  208. 

Durett  v.  Com,  433. 

Durfee  v.  Abbott,  501. 

Durling  v.  Hammar,  423. 

Durocher  v.  Degre,  70. 

Dutton  v.  Dutton,  240. 

Duty  v.  Sprinkle,  161. 

Duvall  v.  Bank,  135. 

Duvall  v.  Graves,  473. 

Duxstad  v.  Duxstad,  245. 

Dwinelle  v.  Railroad  Co.,  650. 

Dwire  v.  Stearns,  381. 

Dwyer  y.  Corrugated  Paper  Products 

Co.,  430. 

Dwyer  v.  Dwyer,  264. 
Dye  v.  Kerr,  390. 

Dyer  v.  Brannock,  38,  42,  44,  295. 
Dyer  v.  Helson,  333. 
Dyer  v.  Pierce,  199. 
Dyment  v.  Nelson,  152. 
Dysart  v.  Dysart,  250,  253. 
Dzikowska  v.  Superior  Steel  Co.,  640. 
Dzkowskl  v.  Reynoldsville  Carting  Co., 

612. 

E 

E.  v.  T.,  29. 

Eager  v.  Grimwood,  379. 

Eagle  Fire  Ins.  Co.  v.  Lent,  506. 

Eames  v.  Eames,  273,  280. 

Eames  v.   Sweetser,  175. 

Eame^  v.  Woodson,  50,  52. 

Earl  v.  Dresser,  442. 

Earl  v.  Godley,  55. 

Earle  v.  Dawes,  295. 

Earle  v.  Earle,  32,  69. 

Earle  v.  Peale,  482. 

Earle  v.  Reed,  476,  481,  482. 

Early  v.  Wilson,  210. 

Eason  v.  Railway  Co.,  624. 

East  Tennessee,  V.  &  G.  R.  Co.  v.  Cox, 

109. 
East   Tennessee,   V.   &   G.   R.   Co.   v. 

Staub,  580. 
Eastes  v.  Bastes,  250. 
Eastland  v.  Burchell,  175,  176,  178. 
Eaton  v.  Eaton,  8,  35,  51,  305,  308,  540, 

541. 

Eaton  v.  Hill,  526. 
Eaton  v.  Railway  Co.,  654. 
Eaton's  Adm'r  v.  Perry,  555. 
Eaves  v.  Fears,  353. 
Ebbetts,  Case  of,  490. 


680 


CASES  CITED 
[The  figure*  refer  to  pages] 


Eberts  v.  Eberts,  447. 
Eckford  v.  Knox,  310,  315. 
Eckstein  v.  Frank,  528. 
Edds,  In  re,  313. 

Eddy  v.  Co-operative  Dress  Ass'n,  595. 
Edelson  v.  Edelson,  326. 
Edelstein  v.  Brown,  43,  Si- 
Edgar  v.  Castello,  377. 
Edgerly  v.  Shaw,  499. 
Edgerly  v.  Whalan,  229. 
Edgerton  v.  Wolf,  518. 
Edgewood  Highland  Land  Co.  v.  Mc- 

Ferren,  472,  514. 
Edington  v.  St.  Louis  &  S.  F.  R.  Co., 

613. 

Edminston  v.  Smith,  83,  173. 
Edmonds  v.  Morrison,  424. 
Edmondson  v.  Machell,  643.     • 
Edmonson's  Estate,  In  re,  406,  454. 
Edmunds  v.  Davis,  411. 
Edmunds  v.  Mister,  498. 
Edmundson  v.  Coca-Cola  Co.,  653. 
Edwards,  Ex  parte,  404. 
Edwards,  In  re,  352. 
Edwards  v.  Countess  of  Warwick,  220. 
Edwards  v.  Crume,  335. 
Edwards  v.  Davis,  324,  392. 
Edwards  v.  Freeman,  390. 
Edwards  v.  Green,  263. 
Edwards  v.  Jefferson  Standard  Life 

Ins.  Co.,  212. 
Edwards  v.  Levy,  591. 
Edwards  v.  Stacey,  209. 
Kdwards  v.  White,  150. 
Edwards  v.  Yearby,  318. 
Edwards'  Estate,  In  re,  64, 
Effray  v.  Effray,  240. 
Egbers  v.  Egbers,  279,  283. 
Egbert   v.   Greenwalt,   120,   121,  296, 

300. 

Eggers  v.  Eggers,  552. 
Eggerth  v.  Eggerth,  253,  279. 
Egidi  v.  Egidi,  278. 
Egoff  v.  Board  of  Children's  Guardi- 
ans of  Madison  County,  313,  463. 
Eichelberger  v.  Gross,  457,  458. 
Eichelberger,  Appeal  of,  425. 
Eiehengreen  v.  R.  Co.,  646. 
Eichler,  In  re,  53. 
EichofFs  Estate,  34. 
Eickhoff    v.  Sedalia,  W.  &  S.  W.  Ry. 

Co.,  370. 

Eidenmuller  v.  Eidenmuller,  256. 
E.  I.  Du  Pont  De  Nemours  &  Co.  v. 

Hipp,  614. 

Eighmy  v.  Brock,  389. 
Eiler  v.  Crull,  175,  176. 
Eisenberg  y.  Fraim,  614, 


Eklund  v.  Hackett,  114. 

Ela  v.  Brand,  326,  330,  33L 

Ela  v.  Ela,  447. 

Eichler,  In  re,  72. 

Elder  v.  Elder,  230. 

Elder  v.  Schumacher,  539. 

Elder  v.  Warner,  380,  381. 

Elderton  v.  Emmens,  596,  598. 

Eldridge  v.  Preble,  196. 

Eldridge  v.  Steamship  Co.,  620. 

Eldridge  v.  Hoefer,  475,  477. 

Elgin's  Guardianship,  In  re,  452. 

Eliot  v.  Eliot,  22,  23,  25. 

Eliott  v.  Gower,  190,  192. 

Elkins  v.  Bank  of  Henry,  161. 

Ellegard  v.  Ackland,  647. 

Ellett  v.  Ellett,  83,  239. 

Elling  v.  Blake-McFall  Co.,  111. 

Ellingshouse  v.  Ajax  Live-Stock  Co., 

622. 
Ellington  v.  Ellington,  371,  376,  378, 

.384. 

Ellington  v.  Harris,  128,  129,  198. 
Ellington  v.  Lumber  Co,  628. 
Elliot  v.  Collier,  39L 
Elliot  v.  Wanamaker,  589. 
Elliott  v.  Atkinson,  126,  160,  209 
Elliott  v.  Gale,  145. 
Elliott  v.  Elliott,  77. 
Elliott  v.  Gurr.  23,  58. 
Elliott  v.  Hawley,  126,  163,  164. 
Elliott  v.  Horn,  478. 
Elliott's  Estate,  In  re,  34,  35,  50,  245, 

276. 

Ellis  v.   Alford,   502. 
Ellis  v.  Ellis,  223,  224,  482. 
Ellis  v.  Hatfleld,  308. 
Ellis  v.  Proprietors,  440. 
Ellis'  Estate,  In  re,  245,  276,  289. 
Ellison  v.  Martin,  289. 
Ellsworth  v.  Shimer,  115. 
Elm  City  Lumber  Co.  v.  Haupt,  476. 
El  Paso  &  S.  W.   Ry.  Co.  v.  Smith, 

624. 

Elrod  v.  Lancaster,  420. 
Elrod  v.  Myers,  486. 
Elsam  v.  Faucett,  122, 
Elser  v.  Elser,  29. 
Elwell  v.  Martin,  529. 
Elwell  v.  Roper,  605. 
Elzas  v.  Elzas,  263. 
Emerson,   Appellant,    446. 
Emerson  v.  Emerson,  244. 
Emerson  v.  Shaw,  32. 
Emerson   v.    Spicer,   435,  436. 
Emerson  v.  Taylor,  113. 
Emerson-Brantingham  Implement  Co. 

v.  Brothers,  151. 
Emerson-Talcott  Co.  v.  Knapp,  126. 


CASES  CITED 
[The  figures  refer  to  pages] 


681 


Emery,  Appeal  of,  566. 

Emery  v.  Emery,  252. 

Emery  v.  Gowen,  370,  371,  372,  380, 

382. 

Emery  v.  Kempton,  579. 
Emmett   v.    Emmett,   564. 
Emmett  v.  Norton,  177,  178. 
Emmons  v.  Murray,  499. 
Emmons  v.  Stevane,  97. 
Empire  Steam  Laundry  Co.  v.  Lozier, 

603. 

Endsley  v.  Taylor,  198. 
England  v.  Garner,  470. 
Engle  v.  Engle,  275. 
Engle  v.  Simmons,  109. 
Englebert  v.  Troxell,  512. 
Englehardt  v.  Yung,  325,  331. 
English  v.  Brown,  232. 
English  v.  English,  146,  234,  260. 
Ennis,  Appeal  of,  481. 
Ensign  v.  Ensign,  246. 
Entsminger  v.  Entsminger,  11,  17. 
Enyart's  Estate,  In  re,  224. 
Epperson  v.  Nugent,  487. 
Equitable  Trust  Co.  of  New  York  v. 

Moss,  477,  483. 

Erickson  v.  St.  Paul  City  Ry.,  640. 
Erie  City   Pass.   R.   Co.   v.   Schuster, 

521,   523. 

Erie  Lighter,  The,  609. 
Erie  R.  Co.  v.  Kane,  635. 
Erie  R.  Co.  v.  Winfield,  638. 
Erlick  v.  Heis,  336. 
Ernst  v.  Hollis,  84. 
Ernst  v.  Railroad  Co.,  615. 
Errat  v.  Barlow,  410. 
Erving  v.  Ingram,  604. 
Ervvin  v.  Puryear,  196. 
Eschrich,  In  re,  432. 
Eshbach  v.  Eshbach,  251,  259. 
Eshom  v.  Eshom,  107. 
Essery  v.  Cowland,  219. 
Estes  v.  Merrill,  33,  49,  63,  64. 
Estill  v.  Fort,  98. 
Estill  v.  Rogers,  37,  41. 
Estridge  v.  Estridge,  455. 
Etherington  v.  Parrott,  176. 
Etna,  The,  362. 
Eureka  Co.  v.  Edwards,  511. 
Eva,  Appeal  of,  61. 
Evanhoff    v.    State    Industrial    Ace. 

Commission,  636. 
Evans  v.  Bennett,  582,  583. 
Evans  v.  Crawford  County  Farmers' 

Mut.  Fire  Ins.  Co.,  171. 
Evans  v.  Crawford  County  Farmers' 

Mut.  Life  Ins.  Co.,  169. 
Evans  v.  Davidson,  646,  647. 


Evans  v.  Evans,  35,  122,  242,  251,  253, 
254,  256,  259,  327. 

Evans  v.  Horan,  539. 

Evans  v.  Morgan,  528. 

Evans  v.  Pearce,  324,  330,  331. 

Evans  v.  Railway  Co.,  634. 

Evans  v.  Secrest,  135. 

Evans  v.  Walton,  370,  385,  644. 

Evans'  Estate,  In  re,  426. 

Evansich  v.  Gulf,  C.  &  S.  F.  R.  Co., 
521,  522. 

Evansville  &  C.  R.  Co.  v.  Wolf,  523. 

Evansville  &  R.  R.  Co.  v.  Henderson, 
628,  632, 

Evarts  v.  Nason,  446. 

Evarts  v.  Taylor,  511. 

Evatt  v.  Mier,  32. 

Evatt  v.  Miller,  40,  295. 

Evelyn  v.  Templar,  237. 

Everett  v.  Sherfey,  360,  364,  385. 

Everson  v.  Carpenter,  504. 

Ewald  v.  Hufton,  155. 

Ewan  v.  Lippincott,  651. 

Ewell  v.  Ewell,  296,  297. 

Ewen  v.  Chicago  &  N.  W.  R.  Co.,  523. 

Ewing  v.  Heim,  129. 

Ewing  v.  Janson,  578,  585. 

Ewing  v.  Smith,  188. 

Ewing  v.   Wheatley,  10. 

Exchange  Bank  of  Ft.  Valley  v.  Mc- 
Millan, 498. 

Eyre  v.  Countess  of  Shaftsbury,  399, 
408,  451. 


Fadden  v.  Fadden,  159. 

Fadden  v.  McKinney,  103. 

Fagan  v.  Interurban  St.  Ry.  Co.,  369. 

Fairbank  Co.  v.  Industrial  Commis- 
sion, 640. 

Fairfax's  Devisee  v.  Hunter's  Lessee, 
564. 

Fairhurst  v.  Liverpool  Adelphi  Loan 
Ass'n,  99,  156. 

Fair-mount  &  A.  St.  Pass.  Ry.  Co.  T. 
Stutler,  355. 

Falender  v.  Blackwell,  654. 

Falla  v.  Pine  Mountain  Granite  Co., 
611,  617,  618,  631. 

Fallen  v.  Mertz,  621. 

Faloon  v.  Mclntyre,  389. 

Fanton  v.  Bryum,  335. 

Farington  v.  Parker,  188. 

Farley,  In  re,  474. 

Farley  v.  Farley,  16,  17. 

Farley  v.  Parker,  539. 

Farley's  Estate,  In  re,  53. 

Farmer  v.  Farmer,  279. 

Farmer  v.  First  Trust  Co.,  591. 


682 


CASES  CITED 
[The  figures  refer  to  pages] 


Farmer  v.  Golde  Clothes  Shop,  582. 
Farmer  v.  Towers,  50. 
Farmers'  Bank  v.  Boyd,  207. 
Farmers'    Bank    of    Hardinsburg    v. 

Richardson,  167. 
Farmer's  Ex'r  v.  Farmer,  448. 
Farmers'  State  Bank  of  Ada  v.  Keen, 

159,  163,  193,  199,  204,  209. 
Farnam  v.  Brooks,  538. 
Farnham  v.  Farnham,  253,  278,  279. 
Farnsworth  v.  Farnsworth,  271. 
Farr  v.  Farr,  11. 
Farrar  v.  Bessey,  157. 
Farrell  v.  Dooley,  605. 
Farrell  v.  Farrell,  361. 
Farrell  v.  Patterson,  196. 
Farrer  v.  Clarke,  405. 
Farrlngton  v.   Secor,  458. 
Farrow  v.  Farrow,  131. 
Farrow  v.   Wilson,   594. 
Farwell  v.  Boston  &  W.  R.  Corp.,  621, 

631. 

Farwell  v.  Farwell,  266,  275. 
Farwell  v.  Steen,  431. 
Faulkner  v.  Davis.  437,  438. 
Fawcett  v.  Cash,  583. 
Fay  v.  Burditt,  541. 
Fay  v.  Hurd,  455. 
Fay  v.  Railway  Co.,  627. 
Fay  v.  Taylor,  459. 
Fearnow  v.  Jones,  28. 
Fears  v.  Riley,  524. 
Feather  v.  Feather's  Estate,  206. 
Feehley  v.  Feehley,  38,  39. 
Feely  v.  Cordage  Co.,  618. 
Feiertag  v.   Feiertag,  577. 
Feiner  v.  Boynton,  83,  173,  179. 
Feld  v.  Borodofski,  546. 
Felkner  v.  Scarlet,  382. 
Fellows  v.  Fellows,  260. 
Felt  v.  Felt,  290. 
Fender  v.  Powers,  439. 
Feneff  v.  Boston  &  M.  R.  R.,  647. 
Feneff  v.  New  York  Cent.  &  H.  R.  Co., 

76,  112. 

Fenner  v.  Lewis.  170. 
Fensterwald  v.  Burk,  67,  68. 
Fenton  v.  Clark,  594,  604. 
Fenton  v.  Reed,  32,  44,  51. 
Fenton  v.  White,  482. 
Fereira  v.  Sayres,  594. 
Ferguson  v.  Bell's  Adm'r,  502. 
Ferguson  v.  Bobo,  528. 
Ferguson  v.  Brooks,  101,  103,  104. 
Ferguson  v.  Collins,  98. 
Ferguson  v.  Herr,  311. 
Ferguson  v.  Jones,  312. 
Ferguson  v.  Neilson,  96,  99,  100. 
Ferguson  v.  Railway  Co.,  475. 


Ferguson  v.  Smothers,  120,  122. 

Ferguson  v.  Williams,  184. 

Ferlat  v.  Gojon,  57,  60. 

Fernsler  v.  Moyer,  376,  410. 

Fero  v.  Fero,  57. 

Ferren  v.  Moore,  175,  177. 

Ferrers  v.  Ferrers,  277,  279. 

Ferris  v.  Shandy,  608. 

Fetrow    v.    Wiseman,    474,    475,    476, 

498. 

Fettiplace  v.  Gorges,  188. 
Feyh's  Estate,  lu  re,  245,  246. 
Fidelity  Trust  Co.  v.  Butler,  413,  415, 

447,  449. 
Fidelity  Trust  &  Safety  Vault  Co.  v. 

Glover,  433. 

Fidelity  &  Deposit  Co.  v.  Freud,  434. 
Fidelity  &  Deposit  Co.  v.  Industrial 

Commission,  642. 
Fidelity  &  Deposit  Co.  v.  M.  Rich  & 

Bros.,  412. 

Fiedler  v.  Fiedler,  106. 
Field  v.  Campbell,  161,  207. 
Field  v.  Moore,  437. 
Field  v.  Peeples,  439. 
Field  v.  Schieffelin,  424,  440,  441. 
Field  v.  Torrey,  452,  456. 
Fielder  v.  Harbinson,  447. 
Fielding,  Case  of,  15. 
Fielding  v.  Fielding,  265. 
Fields  v.  Mitchell,  518. 
Fife  v.   Oshkosh,  109. 
Filbert  v.  New  York,  N.  H.  &  H.  R. 

Co.,  608. 

Fillieul  v.  Armstrong,  591. 
Finch  v.  Finch.  226,  324,  325,  327. 
Findley  v.  Findley,  459. 
Fink  v.  Furnace  Co.,  521. 
Fink  v.  McCue,  200. 
Fink  v.  Missouri  Furnace  Co.,  522. 
Finkelstein  v.  Finkel stein,  81. 
Finley  v.  Brown,  304.  320. 
Finley  v.  Finley,  252. 
Finley  v.  Marion  County,  462. 
Finley  v.  Richmond  &  D.  R.  Co.,  372, 

374. 

Finn  v.  Adams,  331. 
Finn  v.  Rose,  86. 
Finn's  Estate,  In  re,  152. 
Finney  v.  State,  405. 
Finnigan    v.    New    York    Contracting 

Co.,  625. 
Firemen's  Ins.  Co.  of  Albany  v.  Bay, 

187. 

First  Nat.  Bank  v.  Bertoli,  161. 
First  Nat.  Bank  v.  Casey,  491,  512. 
First  Nat.  Bank  v.  Greene,  330. 
First  Nat  Bank  v.  Meyers,  155. 
First  Nat.  Bank  v.  Rutter,  206. 


CASES  CITED 
[The  figures  refer  to  pages] 


683 


First  Nat.  Bank  v.  Sharpe,  55. 
First  Sav.  Bank  &  Tnist  Co.  v.  Flour- 

noy,  206. 

Fischer  v.  Brady,  180. 
Fischer  v.  Sklenar,  566, 
Fish,  Appeal  of,  446. 
Fish  v.  Marzluff,  577. 
Fish  v.  Miller,  447. 
Fishburn  v.  'Burlington  &  N.  W.   R, 

Co.,    521. 

Fisher  v.  Kissinger,  506. 
Fisher  v.  Massillon  Iron  &  Steel  Co., 

597. 

Fisher  v.  Minegeaux.  622. 
Fisher  v.  Monroe,  590. 
Fisher  v.  Mowbray,  473. 
Fisher  v.  Provin,  146,  148,  140. 
Fishli  v.  Fishli,  259,  262. 
Fisk  v.  Fisk,  10. 
Fisk  v.   Sarber,  420. 
Fiske  v.   Bailey,  103. 
Fiske  v.  Lawton,  319. 
Fitch  v.  Peckham.  390. 
Fitler  v.  Fitler,  324. 
Fitts  v.  Hall,  524,  527,  528. 
Fitzgerald  v.  Fitzgerald,  264. 
Fitzgerald  v.  McCarty,  86. 
Fitzgerald  v.  Quann,  101. 
Fitzgerald   v.   Reed,   542. 
Fitzgerald  v.  St.  Paul,  M.  &  M.  R.  Co., 

523. 

Fitzgibbons'  Estate,  In  re,  50,  51. 
Fitz-Hugh  v.  Dennington,  461. 
Fitzhugh  v.  Wilcox,  543. 
Fitzmaurice  v.  Buck,  81,  179. 
Fitzpatrick  v.  Fitzpatrick,  23,  245. 
Fitzpatrick  v.  Owens,  106. 
Fitzpatrick  Square  Bale  Ginning  Co.  v. 

McLaney,  592,  596. 
Flagg  v.  Bean,  141. 
Flaherty  v.  Columbus,  149. 
Flanagan  v.  People,  549,  551. 
Flandermeyer  v.  Cooper,  113. 
Flavell  v.  Flavell,  284. 
Fleek  v.  Zillhaver,  149. 
Fleet  v.  Perrins,  130,  132,  134. 
Fleming  v.  Fleming,  252,  255. 
Fleming  v.  People,  62. 
Flenner  v.  Flenner,  226,  227. 
Flesh  v.  Lindsay,  96,  97.  98,  100. 
Fletcher  v.  A.  W.  Koch  Co.,  504. 
Fletcher  v.  Hickman,  353. 
Fletcher  v.  People,  341,  343. 
Fletcher  v.   Walker,  421. 
Flexner  v.  Dickerson,  473,  489. 
Fleytas  v.  Pigneguy,  252. 
Flight  v.  Bolland,  497. 
Flike  v.  Railroad  Co.,  607,  627. 


Flinn,  In  re,  430. 
Flint  v.  Pierce,  296. 
Flintjer  v.  Kansas  City,  111. 
Flittner  v.  Equitable  Life  Assur.  Soc., 

509. 

Floding  v.  Denholm,  154. 
Florida  Citrus  Exchange  v.  Grisham, 

201. 

Flory  v.  Ostrom,  351. 
Flower  v.  Railroad  Co.,  623,  648. 
Floyd  v.  Calvert,  53. 
Fluker  v.  Banking  Co.,  643. 
Flurscheim  v.  Rosenthal,  82. 
Flynn  v.  Messenger,  82. 
Flynn  v.  New  York,  S.  &  W.  R.  Co., 

638. 
Flynn  v.  Prince,  Colliers  &  Marston 

Co.,  610. 

Fogarty  v.  Southern  Pac.  Co.,  627. 
Foley  v.  Home  Rubber  Co.,  641. 
Foley  v.  Mutual  Life  Ins.  Co.,  397. 
Folger  v.  Heidel,  414. 
Folsom  v.  Folsom,  152. 
Fonda  v.  Van  Home,  397,  398. 
Fones  v.  Phillips,  614. 
•Fontana  v.  Fontana,  12. 
Fooley  v.  Fooley,  57. 
Foot  v.  Card,  109,  118. 
Foote  v.  Foote,  263. 
Foote  v.  State,  298. 
Foppiano  v.  Baker,  377. 
Forbes  v.  Burgess,  50. 
Forbes  v.  Countess  of  Strathmore,  52. 
Forbes  v.  Reynard,  428. 
Ford  v.  Anderson,  613. 
Ford  v.  Banks,  591. 
Ford  v.  Ford,  264,  265. 
Ford  v.  McVay,  356. 
Ford  v.  Monroe,  377. 
Ford  v.  Phillips,  504. 
Ford  v.  Railway  Co.,  607. 
Foreman  v.  Eagle  Rice  Mill  Co.,  609. 
Fornshill  v.  Murray,  2,  3,  50,  57,  58, 

60,   67. 

Forrester,  In  re,  403. 
Forsee's  Adm'x  v.  Forsee,  475,  511. 
Forster  v.  Forster,  259,  273. 
Forster  v.  Fuller,  412. 
Forsyth  v.  Barnes,  157. 
•Forsyth  v.  Hooper,  653,  654. 
Forsyth  v.  McKinney,  590. 
Forsythe  v.  Central  Mfg.  Co.,  366. 
Fort  v.  Allen,  234. 
Fort  v.  Gooding,  363. 
Fortinberry  v.  Holmes,  340. 
Fortune  v.  Killebrew,  430. 
Ft.  Wayne,  C.  &  L.  R.  Co.  v.  Haber- 

korn,  602. 


684 


CASES  CITED 

[The  figures  refer  to  pages] 


Ft.  Wayne  Trust  Co.  v.- Sillier,  161. 

Fosburgh  v.  Rogers,  313. 

Foscue  v.  Lyon,  432,  434. 

Foss  v.  Crisp,  504. 

Foss  v.  Foss,  12. 

Foss  v.  Hildreth,  555. 

Foster  v.  Bank,  649. 

Foster  v.  Deniiy,  453. 

Foster  v.  Hawley,  52. 

Foster  v.  Means,  18,  21* 

Fountain  v.  Boodle,  601. 

Fowler  v.  Alabama  Iron  &  Steel  Co., 
466 

Fowler  v.  Chichester,  96,  98,  101. 

Fowler  v.  Fowler,  13,  17,  253,  255. 

Fowler  v.  Meadow  Brook  Water  Co., 
555. 

Fowler  v.  Shearer,  165,  166. 

Fowlkes  v.  Baker,  332. 

Fox  v.  Burke,  296. 

Fox  v.  Color  Works,  613. 

Fox  v.  Davis,  240. 

Fox  v.  Hawkes,  186. 

Fox  v.  Schumann,  359,  360. 

Fox  v.  Southack,  564. 

Fox  v.  Tyrone,  199. 

Foy  v.  Pacific  Power  &  Light  Co.,  200. 

Foy  v.  Salzano,  510. 

Frame  v.  Thormann,  74. 

France  v.  Shockey,  443,  445. 

Francis  v.  Francis,  45. 

Francis  v.  Outlaw,  114,  116. 

Franco-Texan  Land  Co.  v.  Chaptive, 
566. 

Frank  v.  Carter,  176. 

Frank  v.  Frank,  276. 

Frank  v.  Herold,  571,  573. 

Frank  v.  Manhattan  Maternity  &  Dis- 
pensary, 583,  584. 

Frank  Spangler  Co.  v.  Haupt,  526. 

Franke  v.  Franke,  12. 

Franklin  v.  Butcher,  355,  356,  376. 

Franklin  v.  Fairbanks,  314,  317. 

Franklin  v.  Ford,  306. 

Franklin  v.  Franklin,  88,  242. 

Franklin  v.  Lee,  37,  38,  39. 

Franklin's  Adm'r,  Appeal  of,  98. 

Frantz  v.  Frantz,  269. 

Frary  v.  American  Rubber  Co.,  582. 

Frary  v.  Booth,  188. 

Fraser  v.  Freeman,  649. 

i-Yatini  v.  Caslini,  114,  115. 

Frazer  v.  Andrews,  227. 

Frazier  v.  Massey,  476. 

Frecking  v.  Rolland,  164,  207. 

Fredil  v.  Eves,  178. 

Frederick  v.   Morse,  50. 

Freeburger  v.  Gazzam,  152. 


Freeman,  Appeal  of,  196. 

Freeman  v.  Beefer,  242. 

Freeman  v.  Belfer,  149. 

Freeman  v.  Boland,  527. 

Freeman  v.  Bridger,  486,  487. 

Freeman  v.  Freeman,  251,  255,  390. 

Freeman  v.  Holmes,  180, 

Freeman  v.  People,  550. 

Freeman  v.  Pope,  236. 

Freeman  v.  Robinson,  323. 

Freeman  v.  Shaw,  354. 

Freestone  v.  Butcher,  169,  172,  175, 
179. 

Freiberg  v.  De  Lamar,  441. 

Freisner  v.  Symonds,  305. 

French   v.    Burlingame,    172. 

French   v.   Cresswell,   646,   647. 

French  v.  Currier,  433. 

French  v.  French,  60,  252. 

French  v.  McAndrew,  475,  515,  516. 

French  v.  Mehan,  148, 

French  v.  Rollins,  141. 

French  v.  Sheplor,  423. 

French  v.  Slack,  157. 

Freret  v.  Taylor,  160. 

Frerker  v.  Nicholson  651. 

Frescobaldi  v.  Kinaston,  469. 

Freethy  v.  Freethy,  105. 

Freund  v.  Washburn,  442. 

Frick  v.  St  Louis,  K.  C.  &  N.  Ry.  Co., 
372. 

Fried  v.  Overland  Motor  Co.,  501, 
504. 

Friedman  Mfg.  Co.  v.  Industrial  Com- 
mission, 637. 

Friedrich  v.  Friedrich,  244. 

Friend   v.   Friend,  262. 

Friend  v.  Thompson,  117. 

Frierson  v.  Williams,  195. 

Friesner  v.  Symonds,  305,  306. 

Frith  v.  Frith,  12. 

Fritz  v.  Fernandez,  233. 

Fritz  v.  Fritz,  259. 

Fritz  Schulz,  Jr.,  Co.  v.  Raimes  &  Co., 
566,  567,  568. 

Fronk  v.  Fronk,  116. 

Frost  v.  Frost,  147,  148,  201. 

Frost  v.  Knapp,  209. 

Frost  v.  Parker,  85,  87. 

Fruitt  v.  Anderson,  541, 

Fry  v.  Drestler,  122. 

Fry  v+Fry,  137. 

Fry  v.  Leslie,  382. 

Fryer  v.  Fryer,  43,  45,  48, 

Fuchs  v.  Koerner,  597. 

Fulgham  v.  State,  94. 

Fuller  v.  Blair,  354. 

Fuller   v.   Brown,   594, 

Fuller  v.  Downing,  583, 


CASES  CITED 
[The  figures  refer  to  pages] 


685 


Fuller  v.  Fuller,  330. 

Fuller  v.  Hager,  439. 

Fuller  v.  Jewett,  626. 

Fuller  v.   Little,  596,   597. 

Fuller  v.  Naugatuck  R.  Co.,  112. 

Fuller  v.  Railway  Co.,  111. 

Fuller's  Estate,  In  re,  53. 

Fulton  v.  Fulton,  263,  264. 

Fumiciello,  Case  of,  641. 

Funk's  Guardian  v.  Funk,  330. 

Furenes  v.  Mickelson,  565. 

Furgeson  v.  Jones,  311. 

Furlong  v.  Bartlett,  476. 

Furman  v.   Van   Sise,  324,   325,   376, 

384. 

Furr  v.  Burns,  439. 
Furrh  v.  McKnight,  365. 
Furth  v.  Furth,  40. 
Furth  v.  March,  200. 

G 

G.  v.  G.,  30. 

Gabisso,  Succession  of,  35,  69. 

Gaffney  v.  Hayden,  517. 

Gage  v.  Dauchy,  209. 

Gage  v.  Reed,  184. 

Gage  v.  Menczer,  492. 

Gaillard  v.  Gaillard,  261,  262. 

Gaines,  Succession  of,  405,  519. 

Gaines  v.  Gaines,  436. 

Gaines  v.  Gaines'  Adm'r,  223,  224. 

Gaines'  Adm'x  v.  Poor,  240. 

Gale  v.  Gale,  219. 

Gale  v.  Parrott,  354,  359,  363. 

Gall  v.  Gall,  32,  50. 

Gall's  Will,  In  re,  53. 

Gallagher  v.  Newman,  625. 

Gallant  v.  Great  Northern  Paper  Co., 
622,  629. 

Galleher,  In  re,  352,  395,  403. 

Galligan  v.  Woonsocket  St.  R.  Co., 
354. 

Galveston,  H.  &  S.  A.  R.  Co.  v.  Par- 
ish, 609. 

Gamble  v.  Rucker,  63,  64,  65. 

Gandell  v.  Pontigny,  586,  598. 

Gannon  v.  Manning,  495,  511. 

Gangwere's  Estate,  In  re,  543. 

Gapen  v.  Gapen,  354. 

Gappmayer  v.  Wilkinson,  466. 

Garcia  v.  Garcia,  68. 

Gard  v.  Gard,  13. 

Gardenhire  v.  Hinds,  349. 

Gardiner  v.  Manchester,  38. 

Gardiner  v.  Solomon,  337. 

Gardner  v.  Gardner,  35,  72,  277,  280, 
559. 

Gardner  v.  Kellogg,  367. 


Gardner  v.   Slade,   601. 

Garforth  v.  Bradley,  133,  138,  139. 

Gargan  v.  Sculley,  33. 

Garland  v.  Harrison,  308. 

Garner  v.  Gordon,  409. 

Garner  v.  Lankford,  186. 

Garner  v.  State,  530. 

Garnet  v.  Com.,  451. 

Garretson  v.  Becker,  381, 

Garrett  v.  Garrett,  268. 

Garrett  v.  State,  94. 

Garretzen  v.  Duenckel,  649. 

Garrigue  v.  Keller,  161,  207. 

Garrison  v.  Garrison,  260,  262. 

Garver  v.  Miller,  240. 

Garver  v.  Thoman,  126,  160. 

Garvin's  Adm'r  v.  Williams,  449. 

Gary  v.  Cannon,  435. 

Gary  v.  State,  462. 

Gaska  v.  American  Car  &  Foundry 

Co.,  616. 

Gaskins  v.  Allen,  494,  502. 
Gaspard  v.  Coco,  413. 
Gassaway,  In  re,  463. 
Gaston  v.  Thompson,  330. 
Gatehouse  v.  Gatehouse,  263. 
Gately  Outfitting  Co.  v.  Vinson,  179, 

333. 

Gaters  v.  Madeley,  133. 
Gates  v.  Brower,  170. 
Gates  v.  Meredith,  547. 
Gathings  v.  Williams,  57,  58. 
Gathrnan  v.  Chicago,  633. 
Gault  Lumber  Co.  v.  Pyles,  438. 
Gavin  v.  Burton,  479. 
Gay  v.  Ballou,  81. 
Gay  v.  Hocking  Coal  Co.,  609,  638. 
Gayle  v.  Hayes'  Adm'r,  484. 
Gaylord  v.  Stebbins,  438. 
Gaynor,  Case  of,  639. 
Gebhart  v.    Gebhart,    199. 
Geer  v.  Hovy,  528. 
Gellatly  v.  Gellatly,  270. 
Genereux  v.  Sibley,  483,  513,  518. 
Gentry  v.  Bearss,  440. 
George  v.  Edney,  85. 
George  v.  Goldsby,  133. 
George  v.  Spencer,  231. 
George  Adams  &  Burke  Co.  v.  Cook, 

360. 
George  Jonas  Glass  Co.  v.  Glass  Bottle 

Blowers'  Ass'n  of  U.  S.  &  Canada, 

644. 

Georgia  Northern  R.  Co.  v.  Sharp,  110. 
Georgia  Pac.  R.  Co.  v.  Propst,  520. 
Georgia  R.  &  Banking  Co.  v.  Tice,  111. 
Gerdes  v.  Niemeyer,  160. 
Gerke  v.  Colonial  Trust  Co.,  534. 


686 


CASES  CITED 
[The  figures  refer  to  pages] 


Gerz  v.  Weber,  577. 

Getz  v.  Getz,  261. 

Gibbons  v.  Bente,  587. 

Gibbons  v.  Gibbons,  327. 

Gibbs  v.  Brown,  347. 

Gibbs  v.  Gibbs,  253. 

Gibbs  v.  Poplar  Bluff  Light  &  Power 

Co.,  483. 

Gibney  v.  Allen,  466. 
Gibson,  Appeal  of,  407. 
Gibson  v.  Fidelity  &  Casualty  Co.,  645. 
Gibson  v.  Gibson,  42. 
Gibson  v.  Pollock,  546. 
Gibson  v.  Railroad  Co.,  607,  618. 
Gibson  v.  Soper,  512,  539,  544,  545. 
Giers  v.  Hudson,  389. 
Gignac    v.    Studebaker    Corporation, 

642. 

Gilbert  v.  Brown,  205. 
Gilbert  v.  Gilbert,  260,  326. 
Gilbert  v.  Guptill,  444. 
Gilbert  v.  Hay\vord,  243. 
Gilbert  v.  McEachen,  415. 
Gilbert  v.  Mazerat,  468,  469. 
Gilbert  v.  Schwenck,  418. 
Gilchrist  v.  Bale,  113,  115. 
Gilchrist  v.  State,  530. 
Gilder,  Ex  parte,  464. 
Gildersleeve  v.  Gildersleeve,  245,  287, 

288. 

Giles  v.  Giles,  350. 
Gill  v.  McKinney,  149. 
Gillespie  v.  Grand  Trunk  R.  Co.,  610. 
Gillespie  v.  Nabors,  466. 
Gillet  v.  Shaw,  533,  546. 
Gillett  v.  Gillett,  13,  20. 
Gilley  v.  Gilley,  325,  327. 
Gilliat  v.  Gilllat,  399. 
Gilliuwaters  v.  Gillinwaters,  264,  266. 
Gillis  v.  Goodwin,  516. 
Gilman  v.  Andrus,  171,  180. 
Gllman  v.  Gilman,  106. 
Gilnian  v.  G.  W.  Dart  Hardware  Co., 

354. 

Gilman  v.  Mathews,  85. 
Gilman  v.  Railroad  Corporation,  611, 

632. 

Gilmore  v.  Kitson,  345. 
Gilson  v.  Spear,  527. 
Ginn  v.  Edmundson,  149. 
Ginn  v.  Ginn,  355. 

Ginsberg  v.  People's  Bank  of  Savan- 
nah, 211. 
Giovagnioli  v.  Ft.  Orange  Const.  Co., 

362. 

Gipps  v.  Gipps,  273,  275. 
Gird's  Estate,  In  re,  302. 
Girls'    Industrial   Home   v.   Fritchey, 

323. 


Gise  v.  Com.,  45. 

Gishwiler  v.  Dodez,  347. 

Gladding  v.  Follett,  331. 

Glaser  v.  National  Alumni,  592. 

Glaser  v.  Priest,  406. 

Glass  v.  Bennett,  116,  117. 

Glass  v.  Glass,  32,  295,  473. 

Glass  v.  Wynn,  255. 

Glassell  v.  Glassell,  431. 

Glaze  v.  Pullman  State  Bank,  152. 

Glean  v.  Glean,  12. 

Gleason  v.  Gleason,  89. 

Glenn  v.  State,  462. 

Glenn  v.  Western  Union  Tel.  Co.,  112. 

Glennie  v.  Glennie,  275. 

Glidden  v.  Nelson,  306. 

Glidden  v.  Strupler,  157. 

Glos  v.  Sankey,  313,  316. 

Glover  v.  Alcott,  164. 

Glover  v.  Bates,  216. 

Glover  v.  Glover,  426. 

Glover  v.  Ott's  Adm'r,  483,  485. 

Glover  v.  Proprietors  of  Drury  Lane, 
130. 

Gobber  v.  Empting,  333. 

Goddard  v.  Railway  Co.,  650. 

Godfrey  v.  Rowland,  38,  42. 

Godfrey  v.  State,  530. 

Goelitz  Co.  v.  Industrial  Board  of  Illi- 
nois, 82. 

Goetting  v.  Normoyle,  328,  329. 

Goff  v.  Railroad  Co.,  619. 

GofTs  Guardian  v.  Goff.  431,  432. 

Goldbeck  v.  Goldbeck,  264. 

Golding  v.  Golding,  268. 

Goldsmith  Bros.  Smelting  &  Refining 
Co.  v.  Moore,  161. 

Goleman  v.  Turner,  430. 

Goll  v.  Fehr,  212. 

Gomez  v.  Tracey,  607,  608. 

Gondouin  v.  Gondouin,  12. 

Gonsior  v.  Railway  Co.,  628. 

Gooch  v.  Weldon  Bank  &  Trust  Co., 
199 

Goode  v.  Goode,  286. 

Goode  v.  Harrison,  489. 

Goodenough,  In  re,  350,  353. 

Goodfellow  v.  Railroad  Co.,  623. 

Good  Lands  Co.  v.  Cole,  164. 

Goodman  v.  Alexander,  486. 

Goodman  v.  Pocock,  596,  598. 

Goodman  v.  Winter,  437. 

Gooduow  v.  Empire  Lumber  Co.,  494. 

Goodrich  v.  Cushmun,  44. 

Goodrich  v.  Goodrich,  254. 

Goodrick  v.  Russell,  564. 

Goodripcht  v.  Moss,  300. 

Goodright  v.  Straphan,  141, 

Goodrum  v.  Goodrum,  186. 


CASES  CITED 
[The  figures  refer  to  pages] 


687 


Goodrum    v.    Merchants'   &    Planters 

Bank,  211. 
Goods  of  Duchess  of  Orleans,  In  re, 

467. 

Goodsell  v.  Myers,  476,  504. 
Goodson  v.  Powell,  175. 
Goodwin  v.  Thompson,  39. 
Goodyear  v.  Rumbaugh,  197. 
Gordan  v.  Munn,  215. 
Gorden  v.  Gorden,  49,  53,  61. 
Gordon  v.  Barkelew,  391. 
Gordon  v.  Chicago,  R,  I.  &  P.  R.  Co., 

622. 

Gordon  v.  Gordon,  53,  253. 
Gordon  v.  Haywood,  166. 
Gordon  v.  Miller,  475. 
Gordon  v.  Munn,  223. 
Gordon  v.  Potter,  323,  481. 
Gore  v.  Gibson,  555,  556. 
Gore  v.  Knight,  187. 
Gorham  v.  Massillon  Iron  &  Steel  Co., 

597. 

Gorman  v.  Gorman,  51. 
Gorman  v.  State,  79,  340,  341. 
Gornall,  In  re,  405. 
Gorrell  v.  Bottelle,  637. 
Gortia  v.  Rueda,  5. 
Goset  v.  Goset,  32,  63. 
Goss  v.  Stone,  405. 
Gossard  Co.  v.  Crosby,  599,  600,  601. 
Gott  v.  Gulp,  413. 
Gould  v.  Carlton,  125. 
Gould  v.  Webster,  141. 
Goulding  v.  Davidson,  158. 
Gourlay  v.  Gourlay,  267,  268. 
Government  St.  R.  Co.  v.  Hanlon,  523. 
Governor  v.  Rector,  22. 
Govier   v.    Hancock,   177. 
Graber,   Ex  parte,  566. 
Grace  v.  Globe  Stove  &  Range  Co., 

614,  615. 

Graeceu  v.  Graecen,  251. 
Graeff  v.  Graeff,  262,  265. 
Graff  v.  Blumberg,  597. 
Graham,  In  re,  32. 
Graham  v.  Bennet,  44,  295. 
Graham  v.  Dickinson,  142. 
Graham  v.  Graham,  194,  327. 
Graham  &  Corry  v.  Work,  84. 
Grandin  v.  Southern  Pac.  Co.,  621. 
Grand  Island  Banking  Co.  v.  Wright, 

207,  211,  212. 
Grand   Lodge  Knights  of  Pythias   v. 

Barnard,  32. 
Grand  Rapids  &  I.  R.  Co.  v.  Showers, 

385. 

Grand  Trunk  Ri  Co.  v.  Ives,  615. 
Grand  Trunk  R.  Co.  v.  Knapp,  636. 
Grandy  v.  Hadcock,  82. 


Grangiac  v.  Arden,  387. 

Grannemann  v.  Kloepper,  581. 

Grant  v.  Grant,  231,  242,  251. 

Grant  v.  Simpson,  295. 

Grant  v.  Singer  Mfg.  Co.,  649. 

Grant  v.  Stimpson,  294,  295. 

Grant  v.  Button,  126. 

Grantland  v.  State,  83. 

Grattan  v.  Grattan,  390. 

Grau  v.  McVicker,  586. 

Grauman  Marx  &  Cline  Co.  v.  Krien- 

itz,  467,  469,  492. 
Graves    v.    Columbia    Underwriters, 

152. 

Graves  v.  Graves,  259. 
Graves  v.  Spedden,  391. 
Graves  v.  Union  Oil  Co.,  621,  634. 
Graves  v.  Von  Below,  218. 
Gray,  Appeal  of,  405. 
Gray  v.  Crimm,  512. 
Gray  v.  Durland,  325,  356,  376,  384. 
Gray  v.  Fox.  433,  434. 
Gray  v.  Gray,  263,   264. 
Gray  v.  Lynch,  433. 
Gray  v.  Otis,  169. 
Grayson  v.  Lofland,  518. 
Great  Lakes  Dredge  &  Dock   Co.   v. 

Totzke,  640. 
Great  Northern  R.  Co.  v.  Johnson,  46 

48,  67. 
Great  Western  Power  Co.  v.  Pillsbury, 

642. 

Grebill,  Appeal  of,  133. 
Green  v.  American  Car,  etc.,  Co.,  574. 
Green  v.  Appleton  Woolen  Mills,  462, 

575. 

Green  v.  Cannady,  149. 
Green  v.  Forney,  199,  200. 
Green  v.  Green,  19,  21,  48,  283,  295, 

489,  506,  512. 
Green  v.  Greenbank,  527. 
Green  v.  Gilbert,  594. 
Green  v.  Hulse,  540. 
Green  v.  Johnson,  443,  456. 
Green  v.  Kelley,  303. 
Green  v.  Kelly,  295. 
Green  v.  Railroad  Co.,  112. 
Green  v.  State,  3,  50. 
Green  v.   Wilding,   473. 
Green  v.   Winter,   435. 
Greenburg  v.  Early,  583. 
Greene  v.  Caldwell,  637. 
Greene  v.  Greene,  88. 
Greene  v.  Railroad  Co.,  620. 
Greenhow  v.  Coutts,  222. 
Greenman  v.  Gillerman's  Estate.  315. 
Greensboro  v.  Underbill,  64. 
Greenstine  v.  Borehard,  583. 
Greenwood  v.  Greenwood,  371. 


688 


CASES  CITED 
[Tte  figures  refer  to  pages] 


Greenwood's  Estate,  In  re,  147, 

Gregg  v.  Gregg,  117,  119,  451. 

Gregory,  In  re,  303. 

Gregory  v.  Lockyer,  182. 

Gregory  v.  Molesworth,  470. 

Gregory  v.  Paul,  158. 

Gregory  v.  Pierce,  158. 

Gregory's  Adm'r  T.  Ohio  River  R,  Co., 
648. 

Gregorson's  Estate,  In  re,  6,  20,  58. 

Gresham  v.  King,  149. 

Gribben  v.  Maxwell,  542. 

Grier  v.  McLendon,  407. 

Grievance  Committee  v.  Ennis,  430, 
474. 

Griffin  v.  Collins,  431,  436,  447. 

Griffin  v.  Griffin,  244,  251. 

Griffin  v.  Reynolds,  98. 

Griffin  v.  Sarsfield,  404,  406. 

Griffin  v.  Stanhope,  226. 

Griffith  v.  Griffith,  251,  271,  277. 

Griffith  v.  Schwenderman,  476. 

Griffiths  v.  Griffiths,  276. 

Griggs  v.  Swift,  594. 

Grigsby  v.  Reib,  5,  32,  43,  47,  48. 

Grimes'  Estate,  In  re,  399. 

Grimmett  v.  Witherington,  442. 

Grimm's  Estate,  In  re,  45. 

Grimsby  v.  Hudnell,  466. 

Grinnell  v.  Wells,  373,  380. 

Grisson  v.  Beidleman,  515. 

Grist  v.  Forehand,  442. 

Griswold  v.  Butler,  543. 

Griswold  v.  Griswold,  72,  242. 

Griswold  v.  Penniman,  133. 

Griswbld  v.  Waddington,  568. 

Grolier  Soc.  of  London  v.  Forshay,  504. 

Groom  v.  Thomson,  391. 

Grosman  v.  Union  Trust  Co.,  161,  210. 

Gross  v.  Cadwell,  576. 

Gross  v.   Gross,   21,   119. 

Gross  v.  Whiteley,  '207,  210,  211,  212. 

Grove,  Appeal  of,  260. 

Grove,  In  re,  304. 

Grove  v.  Todd,  167. 

Grover  &  Baker  Sewing  Mach.  Co.  r. 
Bulkley,  577. 

Gruba  v.  Chapman,  473. 

Grute  v.  Locroft,  139. 

Guardians  of  the  Poor  v.  Nathans,  43, 
44,  45,  48,  50. 

Guardians  of  Headington  Union  v.  Ips- 
wich Union,  306. 

Guardianship  of  Chambers,  In  re,  453. 

Guasteio  v.  Michigan  Cent.  R.  Co.,  641. 

Guertin's  Child,  In  re,  335. 

Guest  v.  Edison  Illuminating  Co.,  614. 

Guevin  v.  Manchester  St.  Ry.,  111. 

Guggenheim  v.  Wahl,  287. 


Guild  v.  Cranston,  468,  469. 

Guild  v.  Guild,  577. 

Guild  v.  Hall,  538. 

•Guillebert,  Succession  of,  444. 

Gulf  Cooperage  Co.  v.  Abernathy,  362. 

Gulf,  C.  &  S.  F.  R.  Co.  v.  Lemons,  503. 

Gumbiner  v.  Gumbiner,  10. 

Gund  v.  Parke,  154. 

Gunn  v.  Hardy,  194. 

Gussart  v.  Greenleaf  Stone  Co.,  624. 

Gustin  v.  Bryden,  182. 

Gustine  v.  Westenberger,  103. 

Gustow,  In  re,  346. 

Guthrie  v.  Guthrie,  280. 

Guthrie  v.  Morris,  482. 

Guthrie  v.  Murphy,  486. 

Guthrie  County  v.  Conrad,  324. 

Gntmann  v.  Anderson,  639. 

Gutridge  v.  Railway  Co.,  608. 

Guyer  v.  Sterling  Laundry  Co.,  608, 

610. 

Gwaltney  v.   Cannon,  411. 
Gwin  v.  Vanzant,  454. 

H 

Haberman's  Estate,  In  re,  223. 
Hackettstown  Bank  v.  Mitchell,  88. 
Haddock  v.  Bank,  433. 
Haddock   v.   Haddock,  246,   287,   290, 

291. 

Haddon  v.  Crawford,  301,  309. 
Hadfield,  Case  of,  550. 
Hadley  v.  Heywood,  113,  115,  120,  121, 
Hadnot  v.  Hicks,  155. 
Haeissig  v.  Decker,  382. 
Hageman  v.  Vanderdoes,  103. 
Hagenson  v.  Hagenson,  18. 
Hagert  v.  Hagert,  87. 
Hagerty  v.  Lock  Co.,  518. 
Haggard  v.  Holmes,  85,  86. 
Haggett  v.  Hurley,  160. 
Haggin  v.  Haggin.  44. 
Hague  v.  Hague,  260,  265. 
Haguewood  v.  Britain,  234. 
Hahn   v.   Hahn,   72. 
Hahn  v.  Hammerstein,  308. 
Hahnemann    Hospital    v.    Industrial 

Board,  642. 
Haile  v.  Hale,  241. 
Haine's  Adm'r  v.  Tarrant,  483. 
Haines  v.  Haines,  284. 
Hair  v.  Avery,  130. 
Hair  v.  Hair,  88,  218. 
Hakes  Inv.  Co.  v.  Lyons,  473,  488. 
Haldeman  v.  Weeks,  503. 
Hale  v.  Gerrish,  498. 
Hale  v.  Sheehan,  578. 
Halett  v.  Patrick,  534. 


CASES  CITED 
[The  figures  refer  to  pages] 


Hall  v.  Cone,  447. 

Hall  v.  Corcoran,  526. 

Hall  v.  Dotson,  212. 

Hall  v.  Gabbert,  304. 

Hall  v.  Hall,  207,  259,  260,  262,  280, 

282,    283,    287,    301,   327,    359,    360, 

365,  388,  390,  391. 
Hall  v.  Hollader,  373. 
Hall  v.  Industrial  Commission,  52,  72. 
Hall  v.  Johns,  155,  157. 
Hall  v.  Jones,  515. 
Hall  v.  Stork,  403. 
Hall  v.  Turner's  Estate,  447. 
Hall  v.  Unger,  533. 
Hall  v.  U.  S.,  31. 
Hall  v.  Warren,  538. 
Hall  v.  Weir,  180. 
Hall  v.  Young,  133,  142. 
Halley  v.  Troester,  544. 
Halliday  v.  Miller,  354. 
Halpine  v.  Halpine,  245. 
Halstead  v.  Halstead,  240. 
Halstead  v.  Meeker's  Ex'rs,  433. 
Ham  v.  Ham,  405. 
Ham  v.  Toovey,  177. 
Hamaker  v.  Hamaker,  19,  20. 
Hamann  v.  Milwaukee  Bridge  Co.,  611, 

629. 

Hamerick  v.  People,  404. 
Hamilton  v.  Douglas,  233. 
Hamilton  v.   Hamilton's   Estate,  127, 

200. 

Hamilton  v.  Love,  590. 
Hamilton  v.  Moore,  210. 
Hamilton  v.  Russell,  221. 
Hamilton  v.  Salisbury,  181. 
Hamilton's  Adm'r  v.  Riney,  330. 
Hamlin  v.  Jones,  129. 
Hamlin  v.  Race,  590. 
Hamlin  v.  Stevenson,  461. 
Haminton  v.  Salisbury,  181. 
Hamm  v.  Prudential  Ins.  Co.,  477. 
Hammersley  v.  De  Biel,  227. 
Hammond  v.  Corbett,  355,  356,  384. 
Hammond  v.  Hammond,  226,  227,  271, 

433. 

Hampstead  v.  Plaistow,  16. 
Hampton  v.  State,  529,  530. 
Hanahan  v.  Pittston   Coal  Min.   Co., 

462. 

Hanberry  v.  Hanberry,  246. 
Hanbury  v.  Hanbury,  270. 
Hancock  v.  Haile,  540. 
Hancock  v.  Merrick,  176. 
Hancock  v.  Peaty,  20. 
Hands  v.  Slaney,  484. 
Handy  v.  Foley,  96,  98. 
Handy  v.  Handy,  283. 

TIFF.P.&  D.REL.(3o  ED.)— 44 


Haney  v.  Caldwell,  584. 

Haney  v.  Railway  Co.,  630. 

Haney  v.  St.  Regis  Mining  &  Smelt- 
ing Co.,  608. 

Hankins  v.  Railroad  Co.,  628. 

Hankinson  v.  Hankinson,  260. 

Hanks  v.  Leslie,  151. 

Hanley  v.  Drumm,  216. 

Hanlin  v.  Burk  Bros.  Meat  &  Provi- 
sion Co.,  470. 

Hanna,  Succession  of,  430. 

Hanna  v.  Granger,  628. 

Hannah,  In  re,  534. 

Hannig  v.  Hannig,  260. 

Hannon  v.  Hounihan,  227,  228. 

Hanrick  v.  Gurley,  565. 

Hansell  v.  Erickson,  604. 

Hanson  v.  Railway  Co.,  650. 

Hantz  v.,  Sealy,  57. 

Haraldson  v.  Knutson,  215. 

Harbeck  v.  Harbeck,  53. 

Harcourt,  Ex  parte,  536. 

Harden  v.  Parsons,  432. 

Hardenbergh  v.  Hardenbergh,  89,  147, 
257. 

Hardenbrook  v.  Harrison,  171,  179. 

Hardie  v.  Grant,  177. 

Hardin  v.  Hardin,  266. 

Harding  v.  Alden,  67,  246. 

Harding  v.  Cobb,  203,  208. 

Harding  v.  Harding,  255,  260. 

Harding  v.  Hyman,  87. 

Harding  v.  Schapiro,  461. 

Harding  v.  Weld,  406. 

Hardy  v.  Chicago,  R.  I.  &  P.  R.  Co., 
613,  614. 

Hardy  v.  Holly,  188. 

Hardy  v.  State,  22. 

Hardy  v.  Waters,  475. 

Harford  v.  Morris,  13,  14. 

Harford  County  Com'rs  v.  Hamilton, 
376. 

Hargrave  v.  Hargrave,  296,  297,  299. 

Hargroves  v.  Thompson,  39,  42,  44. 

Harkrader  v.  Reed,  296,  297. 

Harlan  v.  Harlan,  51. 

Harland,  In  re,  330. 

Harle  v.  Harle,  311,  315. 

Harley  v.  State,  564. 

Harmer  v.  Cornelius,  589. 

Hanner  v.  Killing,  504. 

Harmon  v.  Harmon,  540. 

Harmon  v.  Old  Colony  R.  Co.,  200. 

Harmon  v.  Smith,  466. 

Harner  v.  Dipple,  474,  475. 

Harnett  v.  Boston  Store  of  Chicago, 
524. 

Harnett  v.  Harnett,  280. 


690 


CASES  CITED 
[The  figures  refer  to  pages] 


Harney  v.  Owen,  476. 

Harper  v.  Harper,  256. 

Harper  v.  Tola  Portland  Cement  Co., 

624. 

Harper  v.  Luffkin,  383. 
Harper  v.  Pinkston,  108. 
Harper  v.  Railroad  Co.,  611. 
Harper  v.  Utsey,  357,  466. 
Harratt   v.   Harratt,   251. 
Harrigan  v.  Cahill,  176. 
Harriman   v.   Pittsburg,   C.   &   St.   L. 

R.  Co.,  522. 

Harriman  v.  Railroad  Co.,  646. 
Harrington-  v.  Iron  Works  Co.,  594. 
Harrington  v.  Jagmetty,  103. 
Harrington's  Estate,  In  re,  34. 
Harris,  In  re,  326.  330. 
Harris  v.  Butler,  380. 
Harris  v.  Cannon.  494. 
Harris  v.   Carolina  Distributing   Co., 

146. 

Harris  v.  Carstarphen,  447. 
Harris  v.  Crowley,  483. 
Harris  v.  Harris,  63,  64,  253,  275,  276, 

283,  290,  456. 

Harris  v.  Harrison,  426,  444. 
Harris  v.  Hicks,  28. 
Harris  v.  Hobart  Iron  Co.,  637. 
Harris  v.  Hopkins,  439. 
Harris  v.  Jones,  336. 
Harris  v.  Lee,  180,  181. 
Harris  v.  Louisville,  N.  O.  &  T.  R. 

Co.,  646. 

Harris  v.  McElroy,  186. 
Harris  v.  Morris,  179. 
Harris  v.  Preston,  434. 
Harris  v.  Ross.  496. 
Harris  v.  Smith,  576,  577. 
Harris  v.  Spencer,  203. 
Harris  v.  Wall,  499,  500. 
Harris  v.   Webster,  200. 
Harris'  Guardianship,  In  re,  401. 
Harris-Irby  Cotton  Co.  v.  Duncan.  521. 
Harrison  v.  Ad  cock,  506. 
Harrison  v.  Bishop,  559. 
Harrison  v.  Collins,  652,  653. 
Harrison  v.  Fane,  485. 
Harrison  v.  Harker,  301,  302. 
Harrison  v.  Harrison,  12,  447. 
Harrison  v.  Odum,  301. 
Harrison  v.  Rowan,  553. 
Harrison  v.  State,  26,  28,  58,  61,  65,  66, 

530. 

Harrison  v.  Trader,  218. 
Harrold  v.  Clinton  Gas  &  Electric  Co., 

529. 

Harron  v.  Harron,  48. 
Harshaw  v.  Merryman,  175. 


Harshberger's  Adm'r  v.  Alger,  191,  240. 

Hart  v.  Deamer,  543. 

Hart  v.  Gray,  454. 

Hart  v.  Hart,  239. 

Hart  v.  Naumburg,  60S. 

Hart  v.  Prater,  483. 

Hart  v.  Stribling,  458. 

Harteau  v.  Harteau,  244. 

Hartfield  v.  Roper,  520,  521,  522. 

Hartl  v.  Hartl,  278. 

hartley  v.  Hartley's  Estate,  541. 

Hartman  v.  Dowdel,  134. 

Hartman  v.  Kendall,  502. 

Hartman  v.  McCrary,  383. 

Hartman  v.  Rogers,  586,  598. 

Harttmann  v.  Tegart,  175,  176. 

Hartwell  v.  Jackson,  295. 

Hartz  v.  Hartford  Faience  Co.,  640. 

Harvard  College  v.  Amory,  432,  43& 

435 

Harvey  v.  Briggs,  410,  491,  510,  512. 
Harvey  v.  Carroll,  64. 
Harvey  v.  Dunlop,  524. 
Harvey  v.  Harvey,  284,  415. 
Hasissig  v.  Decker,  382. 
Haskell  v.  Haskell,  349,  350. 
Haskell  v.  Jewell,  409. 
Haskell  v.  Sutton,  436. 
Haskell   &   Barker   Car   Co.   v.   Pre- 

zezdziankowski,  609,  621,  622. 
Haskins  v.  Royster,  643,  644. 
Hass  v.  Brady,  174. 
Hassard  v.  Rowe,  435. 
Hastings  v.  Dollarhide,  492,  494,  515. 
Hastings  v.  Douglass,  68. 
Hasty  v.  Sears,  623. 
Hatch  v.  Fuller,  382. 
Hatch  v.  Hatch's  Estate,  499,  500,  505. 
Hatch  v.  Pike  Mfg.  Co.,  624. 
Hatch  v.  Straight,  391. 
Hatfleld  v.  Sneden,  564. 
Hathaway  v.  Bennett,  583. 
Hathaway  v.  Toledo,  W.  &  W.  R.  Co., 

523. 

Hattersley  v.  Bissett,  391. 
Hatton  v.  Bodan  Lumber  Co.,  475,  477, 

505,  510. 

Hauenstein  v.  Lynham,  566. 
Haugh  Ketcham  &  Co.  Iron  Works  v. 

Duncan,  360. 

Ha  user  v.  Marnon  Chicago  Co.,  516. 
Hauser  v.  Murray,  134. 
Havsgord's  Estate,  In  re,  311. 
Hawk  v.  Harman,  96. 
Hawkins,  Appeal  of,  448. 
Hawkins'  Adm'r  v.  Craig,  128. 
Hawkins  v.  Bleakly,  636,  638. 
Hawkins  v.  Bone,  556. 


CASES  CITED 
[The  figures  refer  to  pages] 


691 


Hawkins  v.  Hawkins,  47,  256. 

Hawkins  v.  Ragsdale,  2S9. 

Hawkins  v.  Railroad  Co.,  125. 

Hawkins  v.  Stiles,  152. 

Hawley,  In  re,  398. 

Hawthorne  v.  Beckwith,  183. 

Hawthorne  v.  Jenkins,  388. 

Hayden  v.  Rogers,  86. 

Hayden  v.  Stone,  409. 

Hayes  v.  Hayes,  351,  461. 

Hayes  v.  Parker,  528. 

Hayes  v.  Railroad  Corporation,  628. 

Hayes  v.  Watts,  59. 

Haynes  v.  Bennett,  489,  506. 

Haynes  v.  Montgomery,  419. 

Haynes  v.  Nowlin,  118,  119,  120,  122. 

Hays  v.  Bowdoin,  519. 

Hays  v.  Cox,  173. 

Hays  v.  Hinkle,  466. 

Hays  v.  Hogan,  336. 

Hayward  v.  Barker,  157. 

Hayward  v.  Ellis,  419. 

Hayward  v.  Hayward,  132,  133. 

Haywood  v.  Nichols,  51. 

Hayworth  v.  Williams,  307. 

Hazelton  v.  Hazelton,  350. 

Head  v.  Briscoe,  96. 

Head  v.  Head,  296,  297,  299. 

Head  v.  Leak,  317. 

Headington  Union,  Guardians  of  v.  Ip- 
swich Union,  Guardians  of,  306. 

Headley  v.  Hoopengarner,  466. 

Headman  v.  Rose,  562. 

Healey  v.  P.  Ballantine  &  Sons,  200. 

Healey  Ice  Machine  Co.  v.  Green,  146. 

Healy  v.  Buffalo,  R.  &  P.  R.  Co.,  608, 
631. 

Heaps  v.  Dunham,  384. 

Heard  v.  Daniel,  418. 

Heard  v.  Stamford,  139,  183,  184. 

Hearn,  In  re,  478. 

Hearne  v.  Chadbourne,  579. 

Heath  v.  Heath,  246. 

Heath  v.  Maddock,  453,  468. 

Heath  v.  Stevens,  511,  514. 

Heath  v.  West,  507. 

Heath's  Estate,  In  re,  443. 

Heather  Children,  In  re,  345,  409. 

Heaver  v.  Lanahan,  587. 

Hebblethwaite  v.  Hepworth,  44,  45, 
49,  52. 

Heburn  v.  Warner,  190,  192. 

Heckert  v.  Hile's  Adm'r,  293. 

Heckle  v.  Lurvey,  96,  98. 

Hector  v.  Hector,  327. 

Hedden  v.  Hedden,  111,  273. 

Hedges  v.  Tagg,  371. 

Hedstrom  v.  Union  Forest  Co.,  653. 


Heermance  v.  James,  113,  114,  259. 

Heffington  v.  Jackson,  476,  483. 

Heffner  v.  Heffner,  32,  33. 

Heffron  v.  Brown,  389,  576,  577. 

Heilman  v.  Com.,  531. 

Hein  v.  Holdridge,  382. 

Heinemann,  Appeal  of,  404. 

Heirs  v.  Walkup,  414. 

Heisler  v.  Heisler,  117. 

Helland   v.   Colton   State  Bank,   474, 

475,  494. 

Helm  v.  Phelps,  521. 
Helm  v.  Wilson,  604. 
Helms  v.  Franciscus,  60. 
Hemmenway  v.  Towner,  296,  298. 
Hemming  v.  Price,  57. 
Hendee  v.  Cleaveland,  420. 
Henderson  v.  Clark,  474. 
Henderson  v.  Fox,  482. 
Henderson  v.  Henderson,  252,  253*. 
Henderson  v.  Lightner,  429,  435. 
Henderson  v.   Ressor,  19,  56,  57,  58, 

60,  67. 

Henderson  v.  Stringer,  177. 
Henderson  v.  Wendler,  97,  98. 
Henderson    Grocery    Co.    v.   Johnson, 

140,  193,  200. 

Hendrickson  v.  Hendrickson,  160. 
Hendrickson    v.    Woods,    605. 
Hendrix  v.  Richards,  440. 
Henley  v.  Robb,  444. 
Henn  v.  Children's  Agency,  463. 
Kennies  v.  Vogel,  109. 
Henrichs'  Estate,  In  re,  567. 
Henrietta  Coal  Co.  v.  Martin,  629. 
Henry  v.  Butler,  219. 
Henry  y.   Henry,   226. 
Henry  v.  Root,  474,  475,  499,  502. 
Henry's  Estate,  In  re,  296. 
Hensley  v.  Blankinship,  167. 
Henson  v.  Gulp,  502. 
Henson  v.  Walts,  345. 
Hepburn  v.  Dunlop,  564. 
Herd  v.  Herd,  39,  42,  48. 
Hermance,  In  re,  405. 
Hernandez,  Succession  of,  35,  74. 
Hernandez  v.  Thomas,  345,  352,  398. 
Herrick's  Estate,  In  re,  319. 
Herriford  v.  Herriford,  275. 
Herring  v.  Goodson,  406. 
Herring  v.  Jester,  370,  380,  383. 
Herring  v.  Wickham,  219,  221,  222. 
Herrman  v.  Herrman,  23. 
Hershberger  v.  Lynch,  651. 
Hertz  v.  Hertz,  253. 
Hervey  v.  Moseley,  38,  39,  67, 
Hescht  v.  Calvert,  446. 
Hesketh  v.  Gowing,  306. 


€92 


CASES  CITED 
[The  figures  refer  to  pages] 


Hess  v.  Adamant  Mfg.  Co.,  633. 

Hess  v.  Brown,  198. 

Hesselman  v.  Haas,  305,  461. 

Hessick  v.  Hessick,  225. 

Hetrick  v.  Hetrick,  183. 

Hetzel  v.  Lincoln,  149,  196. 

Hetzel  v.  Wesson  Piston  Ring  Co.,  368, 

639. 

Heugh  v.  Jones,  83. 
Hewitt,  Appeal  of,  559. 
Hewitt,  Case  of,  349. 
Hewitt  v.   Long,  347,  350. 
Hewitt  Lumber  Co.  v.  Cisco,  618. 
Hewlett  v.  George,  341. 
Hexamer  v.  Webb,  654. 
Hey  v.  Prime,  109,  110,  200. 
Heyman  v.  Heyman,  75,  80,  107,  183, 

262. 

Heswood  v.  Tillson,  644. 
H.  G.  Goelitz  Co.  v.  Industrial  Board 

of  111.,  82. 

Hibbard  v.   Heckart,  199. 
Hibbard  v.  Wood,  592. 
Hibbard,   Spencer,  Bartlett  &  Co.  v. 

Heckart,  200. 
Hibbert  v.  Hibbert,  246. 
Hibernian  Sav.  Inst.  v.  Luhn,  199. 
Hickey  v.  Taaffe,  617. 
Hickle  v.  Hickle,  87. 
Hickman  v.  Hall's  Adm'rs,  483. 
Hickman  v.  Hickman,  270. 
Hickman  &  Wells  v.  McDonald,  487. 
Hicks  v.  Cochran,  45,  50. 
Hicks  v.  Gregory,  306. 
Hicks  v.  Smith,  307. 
Hickson  v.  Hickson,  273. 
Hiett  v.  Hiett,  239. 
Higgins,  In  re,  478. 
Higgins  v.  Breen,  32,  57. 
Higgins  v.  Johnson's  Heirs,  153^ 
Higgins  v.  Railroad  Co.,  650. 
Higgins'  Estate,  In  re,  154. 
Higham  v.  Vanosdol,  113. 
Hightower  v.  Maull,  430. 
Hilbish  v.  Hattle,  290. 
Hildreth  v.  Camp,  97. 
Hiles  v.  Hiles,  475. 
Hill,  In  re,  194,  209,  231. 
Hill  v.  Anderson,  516,  517. 
Hill  v.  Balkcom,  587. 
Hill  v.  Chambers,  196,  197. 
Hill  v.  Childress,  334. 
Hill  v.  Day,  535. 
Hill  v.  Good,  28. 
Hill  v.  Hill,  240,  258,  263. 
Hill  v.  Hunt,  134. 
Hill  v.  Lovewell,  186. 
Hill  v.  State,  45,  530. 


Hill  v.  Weil,  496. 

Hillebrant  v.  Brewer,  388. 

Killers  v.  Taylor,  311. 

Hilliard    v.    Baldwin,    52. 

Hilliard  v.  Hambridge,  135. 

Hilliard  v.  Richardson,  652,  653,  654. 

Hills  v.  Blair,  640,  641. 

Hills  v.  State,  68. 

Hillsborough  v.  Deering,  323,  324. 

Hillyer  v.  Bennett,  511. 

Hilpire  v.  Claude,  313. 

Hilton  v.  Roylance,  5,  8,  40,  41,  49. 

Hilts  v.  R.  Co.,  611. 

Hinchcliffe  v.  Koontz,  597. 

Hinckley  v.  Harriman,  457. 

Hindman  v.  State,  457. 

Hindrey  v.  Williams,  594. 

Hinds  v.  Jones,  96. 

Hinds  v.  Overacker,  656. 

Hinds'  Estate,  In  re,  133,  134. 

Hinely  v.  Margarita,  504. 

Hiner  v.  Hiner,  83. 

Hines  v.  Jones,  96. 

Hines  v.  Mullins,  330. 

H  inkle  v.  State,  341,  342,  343. 

Hinman,  In  re,  43,  50,  52. 

Hinski  v.  Stein,  102. 

Hitchcock  v.  Rechold,  164. 

Hitner,  Appeal  of,  240. 

Hix  v.  Gosling,  188. 

H.  Leonard  &  Sons  v.  Stowe,  172. 

Hoag  v.  Hoag,  146. 

Hoard  v.  Peck,  111. 

Hobbs  v.  Hinton  Foundry,  Machine  & 
Plumbing  Co.,  494,  504. 

Hobbs  v.  Hobbs,  35. 

Hochster  v.  De  La  Tour,  585. 

Hockaday  v.  Lynn,  310,  317. 

Hodge  v.  Newton,  577. 

Hodge  v.  Wetzler,  118. 

Hodges  v.  Price,  205. 

Hodges    v.    Windham,    122. 

Hodgkinson  v.  Fletcher,  178. 

Hodgkinson  v.  Hodgkinson,  120. 

Hodgman  v.  Railroad  Corp.,  109. 

Hodgson  v.  Macy,  391. 

Hoenig  v.  Industrial  Commission,  639. 

Hoff  v.  Hoff,  281,  286. 

Hoffman,  In  re,  202. 

Hoffman  v.  Hoffman,  288. 

Hoffman  v.  Railroad  Co.,  650. 

Hoffman  v.  Watkins,  442. 

Hogan  v.  Utter,  475,  495. 

Hogg  v.  Board  of  Com'rs  of  San  Mi- 
guel County,  534. 

Hoggatt  v.  Morancy,  397. 

Hoghton  v.  Hoghton,  389. 

Hogle  v.  H.  H.  Franklin  Mfg.  Co.,  648. 

Ilohenadel  v.  Steele,  345. 


CASES  CITED 
[The  figures  refer  to  pages] 


693 


Holbrook  v.  Waters,  133. 

Holcombe  v.  Holcombe's  Ex'rs,  445. 

Holden  v.  Fitchburg  R.  Co.,  631. 

Holden  v.  Hardy,  574. 

Holden  v.  Holden,  252. 

Holden  v.  Pike,  514. 

Holder  v.   State,  39. 

Hole  v.  Bobbins,  318. 

Holeman  v.  Blue,  426. 

Holland  v.  Bond,  210. 

Holland  v.  Hartley,  326,  333,  358,  359. 

Holland  v.  Riggs,  18,  21. 

Hollenback  v.  Hardin,  652. 

Hollenbeck  v.  Winnebago  Co.,  653. 

Hollenbeck  Co.  v.  Hollenbach,  635,  639. 

Holley  v.  Chamberlain,  405. 

Holliday  v.  Hively,  186,  188,  195. 

Holliday  v.  McMillan,  196. 

Hollinger  v.  York  Rys.  Co.,  476. 

Hollingsworth  v.  McDonald,  165,  167. 

Hollingsworth  v.  Swedenborg,  323,  356, 
361. 

Hollis  v.  Francois,  157. 

Hollopeter,  Ex  parte,  24,  519. 

Holloway  v.  Holloway,  269. 

Holloway  v.  McCormick,  303. 

Hollweg  v.   Bell   Telephone   Co.,   630. 

Holly  v.  Gaslight  Co.,  522,  615. 

Holly  St.  Land  Co.  v.  Beyer,  151,  152. 

Holm  v.  Holm,  268,  350. 

Holman  v.  Holman,  200. 

Holmes,  Case  of,  349. 

Holmes  v.  Adams,  303,  309. 

Holmes  v.  Blogg,  514. 

Holmes  v.  Derrig,  313,  395.     • 

Holmes  v.  Bring,  432. 

Holmes  v.  Holmes,  38,  43,  50,  118,  120, 
149,  261,  283. 

Holmes  v.  Rice,  474. 

Holschbach  v.  Holschbach,  280. 

Holt  v.  Baldwin,  323. 

Holt  v.  Empey,  154. 

Holt  v.  Holt,  325,  328. 

Holt  v.  Ross,  655. 

Holt  v.  Ward  Clarencieux,  23,  476. 

Holt  Lumber  Co.  v.  Industrial  Com- 
mission, 636. 

Holtz  v.  Dick,  23,  39,  67,  96,  115,  117, 
118. 

Holtzman  v.  Castleman,  324. 

Holyoke  v.  Clark,  441. 

Holyoke  v.  Haskins,  416. 

Home  Fire  Ins.  Co.  v.  Barber,  578. 

Homer  v.  Schonfeld,  167. 

Homeopathic  Mut.  Life  Ins.  Co.  v. 
Marshall,  190,  192. 

Homer  v.  Thwing,  526. 

Honey  v.  Clark,  31. 

Honnett  v.  Honnett,  14. 

Hood  v.  Hood,  200,  245,  287. 


Hood  v.  State,  287. 

Hood  &  Johnson  v.  Pelham,  Sitz  & 
Co.,  364. 

Hooker  v.  Hyde,  578. 

Hooper  v.  Haskell,  108,  112. 

Hooper  v.  Hooper,  35,  36. 

Hooper  v.  Howell,  133. 

Hooper  v.  McCaffery,  8. 

Hoopes  v.  Mathis,  154. 

Hoover  v.  Carver,  199. 

Hoover  v..  Heim,  368. 

Hope,  In  re,  461. 

Hopedale  Mach.  Co.  v.  Entwistle,  602. 

Hope-Johnstone,  In  re,  216. 

Hopkins,  Ex  parte,  343,  395. 

Hopkjins  v.  Hopkins,  256. 

Hopkins  v.  Lee,  386. 

Hopkins  v.  Railroad  Co.,  111. 

Hoppe  v.  Chicago,  M.  &  St.  P.  R.  Co., 
523. 

Hopper  v.  MeWhorter,  129. 

Hopps  v.  People,  550. 

Hopson  v.  Boyd,  543. 

Hopt  v.  Utah,  559.. 

Horgan  v.  Pacific  Mills,  356,  357,  376. 

Home  v.  Home,  281,  284. 

Horner  v.  Lawrence,  656. 

Homer  v.  Liddiard,  27. 

Horner  v.  Marshall's  Adm'x,  547. 

Hornish  v.  People,  549. 

Hornketh  v.  Barr,  371. 

Horton,  Appeal  of,  414. 

Horton  v.   Hill,  164. 

Horton  v.  Seaboard  Air  Line  Ry.,  611. 

Horton  v.  Troll,  315,  316. 

Hosford  v.  Rowe,  221,  225. 

Hoskins  v.  Miller,  128,  138. 

Hoskins  v.  White,  518,  519. 

Hosmer  v.  Tiffany,  218,  221. 

Hosmer  v.  Wilson,  586,  587. 

Hostetter  v.  Green,  115. 

Hoth  v.  Peters,  629. 

Hotel  Bond  Co.,  Appeal  of,  637,  638. 

Houck  v.  Chicago  &  A.  R.  Co.,  646. 

Houck  v.  La  Junta  Hardware  Co.,  87. 

Hough  v.  Railway  Co.,  607,  620. 

Houghteling  v.  Walker,  87. 

Houghton  v.  Dickinson,  301,  307. 

Houghton  v.   Rice,  118. 

Houle  v.  Houle,  13,  301. 

Houlihan  v.  Fogarty,  438. 

Houliston  v.  Smyth,  176. 

Houlton  v.  Manteuffel,  515. 

House  v.  Alexander,  485,  487,  501,  504. 

House  v.  Brent,  438. 

House  v.  Fry,  524. 

House  v.  House,  245. 

Houseman  v.  Philadelphia  Transporta- 
tion &  Lighterage  Co.,  651. 

Houston  v.  Brush,  626. 


694 


CASES  CITED 
[The  figures  refer  to  pages] 


Houston    Belt   &   Terminal    Ry.    Co. 

v.   Scheppelmnn,   197. 
Houston  Ice  &  Brewing  Co.  v.  Nicol- 

ini,  577. 
Houston  Oil  Co.  of  Texas  v.  Griggs, 

49. 
Houston's    Adm'x    v.     Seaboard    Air 

Line  Ry.,  611,  617. 

Houston  &  G.  N.  R.  Co.  v.  Miller,  368. 
Houston  &  T.  C.  R,  Co.  v.  Turner,  632. 
Hoverson  v.  Noker,  337. 
Hovey  v.  Hobson,  539,  542,  544,  545. 
Howard   v.   Beldenville   Lumber   Co., 

622. 

Howard  v.  Bryant,  133. 
Howard  v.  Daly,  586,  596.  597,  Sbs. 
Howard  v.  Howard,  31,  280,  281. 
Howard  v.  Kelley,  42. 
Howard  v.  Kelly,  53,  62,  63,  64. 
Howard  v.  Menifee,  131. 
Howard  v.  Moffatt,  135,  136. 
Howard  v.   Randolph,  326. 
Howard  v.   Simpkins,   485. 
Howard  v.  Strode,  289. 
Howbert   v.   Heyle,   439. 
Howe  v.  Hyde,  392. 
Howe  v.  North,  83.  577. 
Howell  v.  Blesh,  172,  333. 
Howell  v.  Heriff,  245. 
Howell  v.  Howell,  262. 
Howes  v.  Bigelow,  183. 
Howland  v.  Railway  Co.,  608,  628. 
Hewlett  v.  Haswell.  527. 
Howman  v.   Corie,  135. 
Hoxie  v.  Price,  234. 
Hoxsie  v.  Potter,  353. 
Hoyt  v.  Casey,  486. 
Hoyt  v.  Fuller,  600,  602. 
Hoyt  v.  Sprague,  420,  434,  442. 
Hoyt  v.  Swar,  165. 
Hoyt  v.   Wilkinson,  493,  515. 
Hubbard,  In  re,  407. 
Hubbard  v.  Belden,  594. 
Hubbard  v.  Bugbee,  157,  158. 
Hubbard  v.  Cummings,  502,  503,  507. 
Hubbard  v.  Hubbard,  282,  283. 
Hubbard  v.  Ten  Brook.  655. 
Hubbell  v.  Wheeler,  378. 
Hubble  v.  Fogartle,  96. 
Huber  v.  Huber's  Adm'r,  231,  232. 
Huber  v.  Roth,  326. 
Huber  v.  Whale  Creek  Iron  Works, 

616. 

Hubermann  v.  Evans,  439. 
Hubert  v.  Traedcr.   148. 
Hubinger's  Estate,  In  re,  215,  223. 
Huchting  v.  Ensile.  r,24. 
Huck  v.  Flentye,  576. 


Hudkins  v.  Ha  skins,  370,  371,  382. 

Hudson,  Guardian  of,  v.  Hudson,  518. 

Hudson  v.  Hills,  305. 

Hudson  v.  Jennings,  90. 

Hudson  v.  King,  85. 

Hudson  v.  Newton,  413,  415. 

Hudson  v.  Sholem,  82,  84,  85. 

Huff  v.  Ames,  521,  523. 

Huff  v.  Ford,  651. 

Huff  v.  Huff,  42,  51,  64. 

Huff  v.  Price,  141. 

Huff  v.  Watkins,  643. 

Huffman,  Ex  parte,  442. 

Huger  v.  Huger,  437. 

Huggett  v.  Erb,  524. 

Huggins  v.  Huggins,  390. 

Hughes  v.  Edwards,  563. 

Hughes  v.  Hughes,  251,  283. 

Hughes  v.  Jones,  535. 

Hughes  v.  Murphy,  511. 

Hughes  v.  People,  432. 

Hughes  v.  Sellers,  469. 

Hughes  v.  Smith,  445. 

Hughes  v.  Toledo,  etc.  Scale  Co.,  602. 

Hughes  v.  Watson,  507. 

Hughes'   Minors,   Appeal  of,  436. 

Hughey  v.  Warner,  186. 

Hughson's  Estate,  In  re,  61,  63. 

Huie  v.  Nixon,  404. 

Huke  v.  Huke,  325. 

Hulett  v.  Carey,  42,  46,  48. 

Huling  v.  Huling,  116,  120,  283. 

Hull,  Assignees  of,  v.  Connolly,  486. 

Hull  v.  Hull,  12,  13. 

Hull  v.  Louth,  544,  545. 

Hull  v.  Rawls,  64. 

Hulley  v.  Moosbrugger,  640. 

Hull's  Assignees  v.  Connolly,  486. 

Hulme  v.  Tenant,  186,  189. 

Humber  v.  number,  250. 

Humbird  Lumber  Co.  v.  Doran,  209. 

Humphrey,  In  re,  313. 

Humphrey  v.  Buisson,  440,  441. 

Humphrey  v.  Bullen,  138. 

Humphrey  v.  Douglass,  525. 

Humphrey  v.  Pope,  115. 

Humphries   v.   Davis,    315,    316,   317, 

318,  319. 

Hundley  v.   Sumrall,  534. 
Hunn  v.  Railroad  Co.,  628,  629. 
Hunt,  Appeal  of,  52. 
Hunt  v.  De  Blauquiere,  180. 
Hunt  v.  Hunt,  24,  35,  88,  23'J,  240,  245, 

262,  276,  287,  302. 
Hunt  v.  Maldonado,  412. 
Hunt  v.   Peake,  23,  476. 
Hunt  v.  State,  457. 
Hunt  v.  Thompson,  323,  324. 


CASES  CITED 
[The  figures  refer  to  pages] 


695 


Hunt  v.  Wayne  Circuit  Judges,  461. 

Huntenberg,  In  re,  474,  493,  494,  510. 

Hunter  v.  Atkins,  447,  449. 

Hunter  v.  Bryant,  217. 

Hunter   v.    Colfax    Consol.    Coal   Co.. 

636,  638. 

Hunter  v.   Hunter,   266. 
Hunter   v.    Ingram-Day   Lumber   Co., 

634. 

Hunter  v.  Lawrence's  Adm'r,  440. 
Hunter  v.  Milam,  39. 
Huntington  v.   Claffln,  577. 
Huntress  v.  Hanley,  214. 
Hunycutt  &  Co.  v.  Thompson,  333,  361. 
Huot  v.  Wise,  114. 
Hurst  v.  Goodwin,  521. 
Hurst  v.  W.  B.  Thompson  &  Co.,  151. 
Hurt  v.  Railroad  Co.,  468. 
•Hussey  v.  Whiting,  349. 
Huston's  Estate,  In  re,  32. 
Hutchcraft  v.  Shrout's  Heirs,  458. 
Hutcheson  T.  Peck,  113,  116. 
Hutching  v.  Engel,  524. 
Hutchins  v.  Brown,  404. 
Hutchins  v.  Dixon,  231. 
Hutchins  v.  Dresser,  429. 
Hutchins  v.  Johnson,  430. 
Hutchins  v.  Kimmell.  38,  42,  44,  67. 
Hutchinson  v.  Hutchinson,  412. 
Hutchinson  v.  Wetmore,  604. 
Button  v.  Button's  Adm'r,  240. 
Huyck,  In  re,  310. 
Huyler's  Ex'rs  v.  Atwood,  209. 
Huyvaerts  v.  Roedtz,  154. 
H.   W.   Gossard   Co.   v.    Crosby,    599, 

600,  601. 

Hyatt  v.  Adams,  110,  111,  112. 
Hyde  v.  Hyde,  5. 
Hyde  v.  Leisenring,  326,  333. 
Hyde  v.  S.,  96. 
Hyde  v.  Stone,  128,  129,  396. 
Hyer  V.  Hyatt,  481. 
Hylton  v.  Hylton,  447. 
Hyman  v.  Harding,  86,  87. 
Hynes  v.  McDermott,  44,  50. 


Ihl  v.  Forty-Second  St.  &  G.  St.  Fer- 
ry R.  Co.,  377. 

Ihley  v.  Padgett,  502. 

Ihmsen,  Appeal  of,  433. 

Illinois  Cent.  R.  Co.  v.  Cox,  623. 

Illinois  Cent.  R.  Co.  v.  Downey,  647. 

Illinois  Cent.  R.  Co.  v.  Grable,  142. 

Illinois  Cent.  R.  Co.  v.  Panebiango, 
612. 

Illinois  Cent.  R.  Co.  v.  Sanders,  306. 

Illinois  Cent.  R.  Co.  v.  Spence,  630. 

Illinois  Cent.  R.  Co.  v.  Tandy,  632. 


Illinois  Cent.   R.   Co.  v.  Whitternore, 

612. 
Illinois  Land  &  Loan  Co.  v.  Bonner, 

295,  296,  474,  496. 
Illinois  Steel  Co.  v.  Saylor,  617. 
Illinois  Steel  Co.  v.  Zieinkowski,  624, 

633. 
Illinois  Terminal   R.   Co.   v.   Chapin, 

633. 
Imboden    v.    St.    Louis    Union    Trust 

Co.,  8. 

Imboden's  Estate,  In  re,  2. 
Imhoof  v.  Northwestern  Lumber  Co., 

608. 

Imlay  v.  Huntington,  188. 
Imperial  Loan  Co.  v.  Stone,  541. 
Indiana  Car  Co.  v.  Parker,  608. 
Indiana  Match  Co.  v.  Kirk,  236. 
Indiana  Quarries  Co.  v.  Farmer,  575. 
Indiana  Union  Traction  Co.  v.  Pring, 

611. 
Indianapolis  Brewing  Co.  v.  Belinke, 

161. 
Indianapolis  Traction  &  Terminal  Co. 

v.  Kidd,  110. 

Indianapolis  Union  Ry.  Co.  v.  Houli- 
han, 635. 
Indianapolis  &  M.  Rapid  Transit  Co. 

v.  Reeder,  111. 

Industrial   Commission  v.  Daly  Min- 
ing Co.,  637. 
Industrial  Commission  of  Colorado  v. 

*Etna  Life  Ins.  Co.,  641. 
Inferior  Court  v.  Cherry,  404. 
Ingalls  v.  Allen,  577,  578. 
Ingalls  v.  Campbell,  398. 
Ingersoll  v.  Ingersoll,  264. 
Ingersoll  v.  Jones,  376,  384. 
Ingham  v.  Bickerdike,  453. 
Ingraham  v.  Baldwin,  541. 
Ingram  v.  Ison,  502. 
Ingram  v.  Southern  Ry.  Co.,  362. 
Ingwaldson  v.  Skrivseth,  380. 
Inhabitants  of  Alma  v.  Plummer,  178. 
Inhabitants  of  Atkinson  v.-Medford, 

18. 

Inhabitants    of    Bucksport    v.    Rock- 
land,  518. 
Inhabitants  of  Charlestown  v.  Boston, 

393. 

Inhabitants  of  Dedham  v.  Natick,  325. 
Inhabitants   of    Dennysville   v.   Tres- 

cott,  360,  393. 
Inhabitants  of  Freetown  v.  Taunton, 

393. 
Inhabitants  of  Goshen  v.  Richmond, 

20. 
Inhabitants   of  Hiram  v.   Pierce,  39, 

67,  68,  71,  295. 


69G 


CASES  CITED 
[The  figures  refer  to  pages] 


Inhabitants  of  Medway  v.  Needham, 
68,  69,  70. 

Inhabitants  of  Middleborough  v. 
Rochester,  18,  20,  57. 

Inhabitants  of  Milford  v.  Worcester, 
37. 

Inhabitants  of  Monson  v.  Palmer,  301, 
306. 

Inhabitants  of  Phillips  v.  Madrid,  72, 
74. 

Inhabitants  of  St.  George  v.  Deer 
Isle.  361. 

Inhabitants  of  Sturbridge  v.  Frank- 
lin, 175. 

Inhabitants  of  Taunton  v.  Plymouth, 
360,  518,  519. 

Inhabitants  of  Town  of  GosBen  v. 
Stonington,  61. 

Inhabitants  of  Unity  v.  Belgrade,  21, 
57. 

Inhabitants  of  Wells  v.  Kennebunk, 
361. 

Inhabitants  of  West  Cambridge  v. 
Lexington,  70. 

Inhabitants  of  West  Gardiner  v.  Man- 
chester, 360. 

Inhabitants  of  Winslow  v.  Troy,  20. 

Inland  Steel  Co.  v.  Kachwinski,  618. 

Inland  Steel  Co.  v.  King,  621. 

Insurance  Co.  of  Tennessee  v.  Waller, 
167. 

International  Harvester  Co.  v.  Boat- 
man, 582,  589. 

International  Harvester  Co.  v.  Camp- 
bell, 578. 

International  Land  Co.  v.  Marshall, 
508. 

International  Mercantile  Marine  Co. 
v.  Fleming,  608. 

International  Text-Book  Co.  v.  Con- 
nelly, 484,  485,  490,  501. 

International  Text-Book  Co.  v.  Dor- 
an,  484,  490,  510. 

International  Text-Book  Co.  v.  Mc- 
Kone,  482,  509. 

Interstate  Coal  Co.  v.  Love,  476. 

Irby  v.  State,  530. 

Ireland  v.  Ireland,  202. 

Ireland  v.  Ward,  114. 

Iron  Age  Pub.  Co.  v.  W.  U.  Tel.  Co., 
599. 

Irvine  v.  Irvine,  475,  489,  492,  495, 
502,  506. 

Irving  v.  Ford,  304. 

Irwin  v.  Dearman,  376,  381,  384. 

Irwin  v.  F.  P.  Gould  &  Son,  632. 

Irwin  v.  Irwin,  82,  350,  351. 

Isaacs  v.  Da  vies,  586,  598. 

Isaacs  v.  Isaacs,  81,  217,  218. 


Isaacs  v.  Railroad  Co.,  649,  650. 

Isaacs  v.  Taylor,  406,  41b. 

Ison  v.  Ison,  391. 

Isphording  v.  Wolfe,  161,  206. 

Israel  v.  Israel,  266. 

Israel  v.  Silsbee,  82. 

Ives  v.  Harris,  188. 

Ives  v.  McNicoll,  302. 

Ivey  v.  Bessemer  City  Cotton  Mills* 

581,  588. 
Izard  v.  Middelton,  226, 


Jack,  Appeal  of,  435. 

Jackson  v.  Banister,  44. 

Jackson  v.  Beach,  564,  569. 

Jackson  v.  Beard,  517. 

Jackson  v.  Burchin,  496. 

Jackson  v.  Claw,  32. 

Jackson  v.  Claypool,  50. 

Jackson  v.  Collins,  308. 

Jackson  v.  Combs,  386. 

Jackson  v.  Fltz  Simmons,  564, 

Jackson  v.  Green,  564. 

Jackson  v.  Gumaer,  538. 

Jackson  v.  Hocke,  307. 

Jackson  v.  Hospital,  592. 

Jackson  v.  Jackson,  68,  71,  196,  309, 

432. 

Jackson  v.  Kirby,  96. 
Jackson  v.  McConnell,  139,  148. 
Jackson  v.  O'Rorke,  436. 
Jackson  v.  Phalen,  63,  65. 
Jackson  v.  Pittsburgh,  C.f  C.  &  St.  L, 

R.  Co.,  377. 

Jackson   v.    Sears,   425. 
Jackson  v.  Southern  Ry.,  623. 
Jackson  v.  Stevens,  230. 
Jackson  v.  Thornton,  296. 
Jackson  v.  Williams,  101. 
Jackson  v.  Winne,  14,  44,  48,  52. 
Jackson  ex  dem.  Wallace  v.  Carpenter, 

506. 
Jacksonville   Electric   Co.   v.   Adams, 

523. 

Jacksonville  Electric  Co.  v.  Sloan,  619. 
Jacobi  v.  Jacobi,  290. 
Jacobia  v.  Terry,  414. 
Jacobs  v.  Cummins,  42. 
Jacobs  v.  Jacobs,  217. 
Jacobs  v.  Tobelman,  280. 
Jacobson  v.  Hobart  Iron  Co.,  618. 
James,  Ex  parte,  419. 
James  v.  Adams,  55,  64,  288. 
James  v.  Allen  Co.,  598. 
James  v.  Christy,  377. 
James  v.  James,  260. 
James  v.  Leroy,  357S 


CASES  CITED 
[The  figures  refer  to  pages] 


697 


James  v.  Sasser,  487. 

James  v.  Taylor,  162. 

James  v.  Winifred  Coal  Co.,  611. 

James  McCreery  &  Co.  v.  Martin,  169, 

172. 

Janes  v.  Janes,  32. 
Janney  v.  Buell,  85. 
Jansa's  Estate,  In  re,  18. 
Jaques  v.  Methodist  Episcopal  Church, 

186,  188. 

Jaques  v.  New  York  Jk.  E.  Church,  191. 
Jarret  v.  Andrews,  416. 
Jarrett  v.  State,  405. 
Jason  v.  Jervis,  225. 
Jayne  v.  Sebewaing  Coal  Co.,  609. 
Jaynes  v.  Jaynes,  120. 
Jee  v.  Thurlow,  240. 
Jefferson  v.  Gallagher,  473. 
Jeffrey  v.  Bigelow,  646. 
Jeffrey's  Estate,  In  re,  330. 
Jeffs  v.  York,  655. 
Jelineau  v.  Jelineau,  60. 
Jemnienski  v.  Lobdell  Car  Wheel  Co., 

616. 

Jeneson  v.  Jeneson,  538. 
Jenkins  v.  Flinn,  163. 
Jenkins  v.  Jenkins'  Heirs,  21. 
Jenkins  v.  Long,  583. 
Jenkins  v.  Richmond  &  D.  R.  Co.,  631. 
Jenkins  v.  Tucker,  182. 
Jenkins  v.  Walter,  421,  422. 
Jenne  v.  Marble,  205. 
Jenner  v.  Morris,  181. 
Jenners  v.  Howard,  538,  556. 
Jenness  v.  Emerson,  355. 
Jenness  v.  Jenness,  252. 
Jenness   v.    Simpson,    114. 
Jenney  v.  Alden,  359. 
Jenning  v.  Rohde,  388. 
Jennings  v.  Camp,  604. 
Jennings  v.  Copeland,  457. 
Jennings  v.  Davis,  231. 
Jennings  v.  Jennings,  263,  441. 
Jennings  v.  Lyons,  593. 
Jennings  v.  Philadelphia  B.  &  W.  Ry. 

Co.,  623. 

Jennings  v.  Rundall,  99,  525,  526. 
Jensen  v.  Jensen,  344,  345. 
Jensen  v.  Kyer,  617,  620. 
Jerome  v.  Queen  City  Cycle  Co.,  592. 
Jervoise  v.  Silk,  330. 
,  Jessop  v.  Jessop,  276. 
Jessup   v.    Jessup,   534. 
Jewell  v.  Colby,  546. 
Jewell  v.   Jewell,   44. 
Jewett,  Ex  parte,  437. 
Jewett   v.   Jewett,   271. 
Jewsbury  v.  Newbold,  175,  179. 
Jewson  y.  Moulson,  134. 


1  J.  G.  v.  H.  G.,  29. 
J.   I.   Case   Threshing   Mach.   Co.   v. 

Wiley,  154. 

Jincey  v.  Winfield's  Adm'r,  576, 
Jobson's  Estate,  In  re,  310,  318. 
Joest  v.  Williams,  556. 
Johannessen  v.  Johannessen,  244. 
Johns  v.  Emmert,  408. 
Johns  v.  Johns,  14,  254,  283. 
Johnsen  v.  Johnsen,  280,  282. 
Johnson,  In  re,  403. 
Johnson  v.  Alexander,  468. 
Johnson   v.    Allen,    115. 
Johnson  v.  Bennett,  142. 
Johnson   v.   Bicknell,   356. 
Johnson  v.  Boston  &  M.  R.  R.,  621, 

631. 

Johnson  v.  Brauch,  234. 
Johnson  v.  Coleman,  176,  180. 
Johnson  v.  Copeland's  Adm'r,  393. 
Johnson  v.   Cummins,    191,   194,   212, 

213. 

Johnson  v.  Eversole  Lumber  Co.,  564. 
Johnson   v.   Far   [West   Lumber   Co., 

618. 

Johnson  v.  Gallagher,  189,  191. 
Johnson  v.   Garner,  154. 
Johnson  v.  Glidden,  337. 
Johnson  v.  Griffiths  &  Co.,  184. 
Johnson  v.  Holland,  210. 
Johnson  v.  Insurance  Co.,  509,  510,  514. 
Johnson  v.   Johnson,  10,   64,  71,  106, 

146,  199,  248,  251,  256,  260,  263,  277, 

278,  280,  406,  445. 
Johnson  v.  Johnson's  Adm'r,  2,  44,  55, 

68. 

Johnson  v.  Johnson's  Committee,  132. 
Johnson  v.  Kennecott,  466. 
Johnson  v.  Kincade,  60. 
Johnson  v.  Latty,  328. 
Johnson  v.  Lines,  483,  485. 
Johnson   v.    McKeown,   97,   98. 
Johnson  v.  Medlicott,  556. 
Johnson  v.  Phifer,  533. 
Johnson  v.  Pie,  528. 
Johnson  v.   Pye,  525. 
Johnson  v.  Silsbee,  360,  365. 
Johnson  v.   Smallwood,  332. 
Johnson  v.  Spear,  622. 
Johnson  v.  State,  340,  341,  342,  531. 
Johnson  v.  Storie,  495. 
Johnson  v.  Sumner,  173,  174,  179. 
Johnson  v.  Terry,  334,  345,  352. 
Johnson  v.  Towboat  Co.,  626. 
Johnson  v.  Water  Co.,  575,  629. 
Johnson  v.  Western  &  A.  R.  Co.,  653. 
Johnson  v.  Williams,  180. 
Johnson's   Adm'r   v.   Johnson's    Ex'r, 

396. 


698 


CASES  CITED 
[The  figures  refer  to  pages] 


Johnson's  Adm'rs  v.  Johnston,  134. 

Johnson's  Committee  v.  Mitchell,  535. 

Johnson's  Heirs  v.  Raphael,  41. 

Johnston  v.  Coleman,  413,  415. 

Johnston  v.  Disbrow,  121. 

Johnston  v.  Gerry,  495. 

Johnston  v.  Sumner,  171. 

Johnstone  v.  Beattie,  393,  404,  405,  407, 
416. 

Johnstone  v.  Mappin,  227. 

Joliet  Mfg.  Co.  v.  Dide,  602. 

Jolly  v.  Rees,  171.  173. 

Jonas  v.  Field,  592. 

Jonas  Glass  Co.  v.  Glass  Bottle  Blow- 
ers' Ass'n  of  United  States  and 
Canada,  644. 

Jones,  Appeal  of,  221. 

Jones  v.  Bank,  476. 

Jones  v.  Bean,  312. 

Jones  v.  Blocker,  643,  644. 

Jones  v.  Bond,  130. 

Jones  v.  Bowman.  404. 

Jones  v.  Brewer,  412. 

Jones  v.  Carter,  141. 

Jones  v.  Clifton,  187,  232. 

Jones  v.  Colvln,  486. 

Jones  v.  Crosthwaite.  207. 

Jones  v.  Davenport,  133. 

Jones  v.  Dun  ton,  598. 

Jones  v.  Field,  592. 

Jones  v.  Jones,  31,  52,  63,  80,  83,  151, 
160,  244,  253,  256,  260,  286,  287,  290, 
292. 

Jones  v.  Jones'  Ex'r,  195. 

Jones  v.  Judd,  593. 

Jones  v.  McMasters,  564. 

Jones  v.  Monson,  117. 

Jones  v.  Patterson,  141. 

Jones  v.  Pluminer,  142. 

Jones  v.  Powell.  405. 

Jones  v.  Read-Jones,  264. 

Jones  v.  Reddick,  50. 

Jones  v.  11.  J.  Reynolds  Tobacco  Co., 
610. 

Jones  v.  State,  531. 

Jones  v.  Tevis,  385. 

Jones  v.  Transportation  Co.,  586. 

Jones  v.  Valentine's  School  of  Teleg- 
raphy, 474,  481,  482,  511. 

Jones  v.  Ward,  451. 

Jones  v.  W.  A.  Smith  &  Co.,  149. 

Jones  v.  Wocher,  163. 

Jones-Rosquist-Killen  Co.  v.  Nelson, 
87. 

Jordan  v.  Coffield,  484,  488. 

Jordan  v.  Hovey,  379. 

Jordan  v.  Jackson,  167. 

Jordan  v.  Jordan,  128. 

Jordan  v.  Kirkpatrick,  540. 


Jordan   v.   Missouri   &  Kansas  Tele- 
phone Co.,  5,  11,  16,  58,  69. 
Jordan  v.  State,  551. 
Jordan  v.  Wright,  331. 
Joslin  v.  Ice  Co.,  651. 
J.  P.  Leiniuger  Lumber  Co.  v.  Dewey, 

222. 

Judge  of  Probate  v.  Chamberlain,  138. 
Judge  of  Probate  v.  Toothaker,  458. 
Judkins  v.  Walker,  517. 
Judson  v.  Blanchard,  468. 
Judson  v.  Judson,  83,  243,  244. 
Julian  v.  Julian,  351. 
Junction  R.  Co.  v.  Harris,  140. 
June  v.  Labadie,  83,  206. 
Just  v.  State  Savings  Bank,  212. 
Justice  v.  Justice,  495. 
Justis  v.  English,  187. 
Juvenile  Court  of   Shelby  County  v. 

State,  464. 

K 

Kahlo  v.  Kahlo,  36. 

Kahl  v.  Schober,  559. 

Kahn  v.  Kahn,  46. 

Kain  v.  Larkin,  359,  360. 

Kair,  Ex  parte,  574. 

Kamil  v.  New  York  College  of  Den- 
tistry, 514. 

Kaminsky  v.  Chicago  Rys.  Co.,  633. 

Kampmann  v.  Rothwell,  653. 

Kancevich  v.  Cudahy  Packing  Co., 
611,  614. 

Kane,  In  re.  330.  331. 

Kane  v.  Babcock  &  Wilcox  Co.,  616, 
624. 

Kane  v.  Erie  R.  Co.,  632. 

Kansas  Central  R.  Co.  v.  Fitzsimmons, 
522. 

Kansas  City,  M.  &  O.  Ry.  Co.  v.  Loos- 
ley,  653. 

Kansas  Union  Life  Ins.  Co.  v.  Bur- 
man,  596. 

Kantrowitz  v.  Prather,  190. 

Kapigian.  v.  Der  Minassian,  288. 

Karoly  v.  Industrial  Commission,  636. 

Karr  v.  Parks.  366,  368. 

Karr's  Adm'r  v.  Karr,  431,  445. 

Kaspar  v.   People,  458. 

Kath  v.  East  St.  Louis  &  S.  R.  Co., 
618. 

Kaufman  v.  Clark,  382. 

Kaufman  v.  Geoson,  73. 

Kaufman  v.  Kaufman,  240,  291. 

Kavanauch  v.  Janesville,  112. 

Kay  v.  Whittaker,  141. 

Kaye,  In  re,  403,  405, 

Kayser  v.  Van  Nest.  337. 

Kayton  r.  Barnett,  655. 


CASES  CITED 
[The  figures  refer  to  pages] 


699 


Keagy  v.  Trout,  131,  133. 

Keane  v.  Boycott,  472,  498,  643,  G44. 

Keane  v.  Liebler,  604. 

Kearney  v.  Vann,  200. 

Keaton  v.  Davis,  324. 

Keats  v.  Keats,  279. 

Keeble  v.  Cummins,  538. 

Keech  v.  Enriquez,  309. 

Keech  v.  Keech,  89,  263. 

Keedy  v.  Long,  589,  596,  597,  59S,  599. 

Keefer  v.  Amicone,  84. 

Keegan  v.  Geraghty,  316,  317,  320. 

Keeler  v.  Fassett,  386. 

Keen  v.  Coleman,  99. 

Keen  v.  Hartman,  99. 

Keen  v.  Keen,  120. 

Keesey  v.  Keesey,  264. 

Keesling  v.  Keesling,  351. 

Keffe  v.  Milwaukee  &  St.  P.  R.  Co., 

522. 

Kehr  v.  Smith,  237. 
Keil  v.  Keil,  245. 
Keister's    Adm'r    v.    Keister's    Ex'rs, 

107. 

Keith  v.  Keith,  29. 
Kekewich  v.  Manning,  231. 
Kellar  v.  James,  101. 
Keller  v.  Donnelly,  376.  384. 
Keller  v.  Phillips,  170,  172,  173,  175. 
Kelley  v.  Adams,  430. 
Kelley  v.  Davis,  323,  324,  481. 
Kelley  v.  Dearman,  234. 
Kelley  v.  Haylock,  639. 
Kelley  v.   Kelley,  59,  60. 
Kelley  v.  Railroad  Co.,  619. 
Kelliher  v.  Kennard,  212. 
Kellogg,  In  re,  S9S,  399. 
Kellogg  v.  Adams,  388. 
Kelly,  In  re,  313. 
Kelly  v.  Canon,  84. 
Kelly  v.  Johnson,  575,  622. 
Kelly  v.  Kelly,  255. 
Kelly  v.  Neely,  27,  28. 
Kelly  v.  Partington,  601. 
Kelly  v.  Pratt,  565. 
Kelly  v.  Scott,  58. 
Kelly  v.  Smith,  405. 
Kelly  v.  State,  559. 
Kelly  v.  Tyra,  622. 
Kelly's  Estate,  In  re,  296. 
Kellyville  Coal  Co.  v.  Bruzas,  611. 
Kelsey  v.  Green,  461. 
Kelso  v.  Tabor,  157. 
Kemp  v.  Dowuliam,  176,  178. 
Kemp  v.  Cossart,  391. 
Kemp  v.  Kemp,  82. 
Kemp  v.  McNeill  Cooperage  Co.,  613. 
Kendall  v.  May,  470. 
Kendall  v.  Miller,  396. 


Kendrick  v.  Neisz,  474,  498,  499,  504. 
Kendrick's  Estate,  In  re,  554. 
Kenefick-Hammond  Co.  v.  Rohr,  631. 
Kenge  v.  Delavall,  156. 
Kenley  v.  Kenley,  33,  253. 
Kennaird  v.  Adams,  418.  , 

Kennard  v.  Burton,  368. 
Kennedy  v.  Baker,  503. 
Kennedy   v.    Kennedy,    88,    251,    254, 

259,  261. 

Kennedy  v.  McCann,  388. 
Kennedy  v.  Meara,  462. 
Kennedy  v.  New  York  Cent.  &  H.  R. 

R.  Co.,  356,  376. 
Kennedy  v.  Shea,  370,  371,  380. 
Kennedy  v.  State,  295,  297. 
Kennedy  v.  Swisher,  127,  161. 
Kenner  v.  Kenner,  289,  368. 
Kenney  v.  Baltimore  &  O.  R.  Co.,  385. 
Kenny  v.  Udall,  134,  135,  136. 
Kensington  v.  Dollond,  129. 
Kent  v.  La  Rue,  541. 
Kent  Furniture  Mfg.  Co.  v.  Ransom, 

605. 

Kentzler  v.  Kentzler,  351. 
Kenure  v.  Brainerd  &  Armstrong  Co., 

354,  359. 

Kenyon  v.  Farris,  181. 
Keppelmann  v.  Keppelmann,  568. 
Kepperly  v.  Ramsden,  653. 
Kerley,  Succession  of,  154. 
Kern  v.  Kern,  18. 
Kerr  v.  Forgue,  368. 
Kerrigan  v.  Hall,  310. 
Kerrigan   v.   Rautigan,   388. 
Kessler  v.  Kessler,  176. 
Ketchum  v.  Faircloth-Segrest  Co.,  519. 
Ketsey,  Case  of,  489. 
Ketterer  v.  Nelson,  180,  182. 
Kettletas  v.  Gardnef,  405,  454. 
Kevan  v.  Waller,  451. 
Key,  Lessee  of,  v.  Davis,  539. 
Key  v.  Harris,  540. 
Keyes  v.  Keyes,  10,  21,  60. 
Keystone    Brewing    Co.    v.    Varzaly, 

161. 

Keystone  Bridge  Co.  v.  Newberry,  629. 
Kibblewhite  v.  Rowland,  277. 
Kidd  v.  Montague,  197. 
Kientz  v.  Kientz,  81. 
Kiernan,  In  re,  416. 
Kies  v.  Young,  184. 
Kiley  v.  Rutland  R.  Co.,  624,  627. 
Kilgore  v.  Rich,  482,  484. 
Killackey  v.  Killackey,  63. 
Killiher  v.  Kennard,  212. 
Killingsworth  v.  Keen,  103. 
Kilpatrick  v.  Kilpatrick,  167. 
Kimball,  In  re,  290. 


700 


CASES  CITED 
[The  figures  refer  to  pages] 


Kimball  v.  Cushman,  651. 

Kimball  v.  Keyes,  177,  178. 

Kimball  v.  Perkins,  426. 

Kimberlin  v.  Southwestern  Bell  Tele- 
phone Co.,  609,  610. 

Kimberly  v.  Rowland,  111. 

Kimble  v.  Kimble,  155. 

Kimmey  v.  Abney,  167. 

Kinard  v.  Proctor,  502. 

King  v.  Davis,  194. 

King  v.  Floding,  368. 

King  v.  Ford,  621. 

Kint;  v.  King,  256,  444. 

King  v.  Norfolk  &  S.  R.  Co.,  617,  634. 

King  v.  Railroad  Co.,  651,  652,  654, 
655. 

King  v.  Seaboard  Air  Line  Ry.  Co., 
578. 

King  v.  Smythe,  336. 

King  v.  State  Ins.  Fund,  640. 

King  v.  Talbot,  433,  435. 

King  v.  Thompson,  108,  111,  112. 

King  v.  Woodstock  Iron  Co.,  613. 

King's  Estate,  In  re,  391. 

Kingman-Texas  Implement  Co.  v. 
Herring  Nat  Bank,  200. 

Kingsley,  In  re,  442. 

Kinkaid  v.  Kinkaid,  271. 

Kinkaid  v.  Lee,  153,  198. 

Kinney  v.  Calumet  Pub.  Co.,  581. 

Kinney  v.  Com.,  71. 

Kinney  v.  Kinney,  327,  351. 

Kinney  v.  Tri-State  Tel.  Co.,  32,  62. 

Kinnier  v.  Kinnier,  245. 

Kinsey  v.  Feller,  199. 

Kinsey  v.  Kinsey,  77,  253,  260. 

Kinsey  v.  State,  330. 

Kintzinger's  Estate,  In  re,  131. 

Kirby  v.  Taylor,  448. 

Kirckman's  Estate,  In  re,  405. 

Kirk  v.  Middlebrook,  367,  386. 

Kirkham  v.  Wheeler-Osgood  Co.,  466. 

Kirkland  v.  Matthews,  345. 

Kirkland  v.  Whately,  417. 

Kirkman,  Ex  parte,  438. 

Kirk nian  v.  Kirkman,  253. 

Kirkpatrick  v.   Kirkpatrick,   261. 

Kirkpatrick  v.  Lockhart,  385. 

Kirkpatrick  v.  Metropolitan  St.  R, 
Co.,  111. 

Kirkwall  v.  Kirkwall,  280. 

Kistner  v.  American  Steel  Foundries, 
620. 

Kitchen  v.  Bedford,  229. 

Kitchen  v.  Lee,  475,  508. 

Kitzman  v.  Kitzman,  6,  59,  70. 

Kjellander  v.  Kjellander,  350. 

Klapp  v.  Pulsipher,  314,  316. 


Klapp's  Estate,  In  re,  316,  317. 

Klaus  v.  A.  C.  Thompson  Auto  &  Bug- 
gy Co.,  514. 

Klaus  v.  State,  468. 

Kleeman  v.  Collins,  579. 

Klein  v.  Klein,  88,  118,  351, 

Klein  v.  Laudman,  64. 

Kleinert  v.  Ehlers,  296. 

Kleist  v.  Breitung,  117. 

Klenke  v.  Noonan,  37,  41. 

Klenke's  Estate,  In  re,  147. 

Kleps  v.  Bristol  Mfg.  Co.,  634. 

Kline  v.  Beebe,  396,  494. 

Kline  v.  Galland,  495. 

Kline  v.  Kline,  224,  252,  289. 

Kline  v.  L'Amoureuz,  486. 

Kline's  Estate,  In  re,  223. 

Klingman  v.  Holmes,  368,  369,  375. 

Klipfel  v.v  Klipfel,  42. 

Klopfer  v.  Bromme,  382. 

Klopfer  v.  Mittenthal,  181. 

Klunk  v.  Blue  Pearl  Granite  Co.,  616_ 

Knapp  v.  Crosby,  469. 

Knapp  v.  Knapp,  250. 

Knapp  v.  Tolan,  345. 

Knappen  v.  Freeman,  104. 

Knecht  v.  Knecht,  53,  81. 

Knee,  Ex  parte,  305. 

Knight  v.  Gallaway,  312,  314. 

Knight  v.  Knight,  256. 

Knight  v.  Plimouth,  432. 

Knight  v.  Wilcox,  382. 

Knights  Templars  &  Masons'  Life  In- 
demnity Co.  v.  Crayton,  430. 

Knoblock  &  Rainold  v.  Posey,  150. 

Knorpp  v.  Wagner,  618. 

Knost  v.  Knost,  5. 

Knott,  In  re,  312,  313,  314,  395. 

Knott  v.  Cottee,  403. 

Knowack,  In  re,  461. 

Knowlman  v.  Bluett,  306. 

Knowlton  v.  Bradley,  422,  431,  445. 

Knox  v.  Flack,  473. 

Knox  v.  Haug,  543. 

Kobogum  v.  Jackson  Iron   Co.,  55. 

Koch  v.  Sallee,  234. 

Koehler  v.  Buhl,  582. 

Koehler  v.  Koehler,  16. 

Koenke  v.  Bauer,  379. 

Koerner  v.  St.  Louis  Car  Co.,  624,  626^ 
633. 

Kohlhoss  v.  Mobley,  122. 

Kohn  v.  Fandel,  604. 

Kol,  In  re,  462. 

Konigmacher  v.  Kimmel,  434,  435. 

Koonce  v.  Wallace,  22,  23. 

Koopman  v.  Mansolf,  160. 

Kosanke's  Estate,  In  re,  82,  84. 

Koscbman  v.  Ash,  609. 


CASES  CITED 
[The  figures  refer  to  pages] 


701 


Kosciolek   v.   Portland   Ry.,   Light   & 

Power  Co.,  113. 
Kosminsky  v.  Goldberg,  97. 
Kostachek  v.  Kostachek,  278,  279. 
Kotera   v.   American   Smelting  &  Re- 

finiug  Co.,  606,  609. 
Kotzke  v.  Kotzke's  Estate,  301. 
Kovacs  v.  Mayoras,  109. 
Kowing  v.  Manly,  96,  98,  99,  101. 
Krachanake   v.   Acme   Mfg.   Co.,   566. 
Kraft  v.  Wickey,  442. 
Kraker  v.  Byrum,  411,  486. 
Krauthoff,  In  re,  351. 
Krbel  v.  Krbel,  494. 
Krebs  v.  O'Grady,  158. 
Kremer  v.  Eagle  Mfg.  Co.,  614. 
Kriz  v.  Peege,  194, 199,  207,  211. 
Kroell  v.  Kroell,  216,  219. 
Kroessin  v.  Keller,  121,  122,  123. 
Kroff  v.  Amrhein,  314,  317. 
Krom  v.  Schoonmaker,  546,  547. 
Krompier  v.   Spivek,   582. 
Krouse  v.  Krouse,  160. 
Krouskop  v.  Shontz,  213. 
Kruczkowski    v.    Polonia    Publishing 

Co.,  639. 

Krueger  v.  Railway  Co.,  626. 
Krueger  v.  Roxford  Knitting  Co.,  589. 
Krug  v.  Davis,  311. 
Kuhlman  v.  Wieben,  555. 
Kuipers  v.  Thorne,   475. 
Kujek  v.  Goldman,  105. 
Kuklence  v.  Vocht,  103,  104. 
Kupka  v.  Kupka,  262. 
Kurtz  v.  St.  Paul  &  D.  R.  Co.,  407. 
Kurtz  v.  West  Duluth  Land  Co.,  407. 
Kuster  v.  Dickson,  164. 
Kustuvin  v.  Chicago  &  A.  R.  Co.,  634. 
Kutch  v.  Kutch,  8,  13. 
Kutter's  Estate,  In  re,  68. 
Kyle  v.  Barnett,  418. 


L.  v.  L.,  30. 

La  Boute  v.  La  Bonte,  245. 

Lackman  v.  Wood,  363,  365,  466. 

Lacoste  v.  Guidroz,  15. 

La  Cotts  v.  Quertermous,  502. 

Lacy  v.  Getman,  594. 

Lacy  v.  Pixler,  491,  495,  512. 

Lacy  v.  Williams,  393. 

La  Flamme  v.  La  Flamme,  261. 

La  Fleur  v.  M.  A.  Burns  Lumber  Co., 

607. 

La  Framboise  v.  Day,  288. 
La  Grande  Laundry  Co.  v.  Pillsbury, 

639. 


Lahoma  Oil  Co.  v.  State  Industrial 
Commission,  636. 

Laidley  v.  Central  Land  Co.,  140,  167, 

Laird  v.  Dickirson,  534. 

Laird  v.  Vila,  234. 

Lake  v.  Bender,  151,  153,  154. 

Lake  v.  Perry,  466,  491,  495,  512,  519. 

Lake  Erie  &  W.  Ry.  Co.  v.  Tierney, 
578,  582,  596. 

Lakeman  v.  Pollard,  594. 

Lake  Shore  &  M.  S.  Ry.  Co.  v.  La- 
valley,  630. 

Lake  Shore  &  M.  S.  Ry.  Co.  v.  Spang- 
ler,  630. 

Lake  Superior  Iron  Co.  v.  Erickson, 
623. 

Lalande  v.  Aldrich,  577,  591. 

Lally  v.  Cantwell,  645. 

Lally  v.  Sullivan,  461. 

Lalor  v.  R.  Co.,  620. 

Lamar  v.  Micou,  393,  395,  416,  417,  426, 
432,  433,  435,  436. 

Lamb  v.  Harbaugh,  110. 

Lamb  v.  Lamb,  210. 

Lamb's  Estate,  In  re,  404. 

Lambert  v.  Lambert,  259,  275. 

Lamkin  &  Foster  v.  Le  Doux,  487,  498. 

Lammi  v.  Milford  Pink  Granite  Quar- 
ries, 624. 

Lamphier  v.  State,  93. 

Lamphir  v.  Creed,  128. 

Lancaster  County  Nat.  Bank  v.  Moore, 
542. 

Land  v.  Martin,  280. 

Land  v.  State,  481. 

Lander  v.  Seaver,  340. 

Landers!  Estate,  In  re,  317. 

Landes  v.  Landes,  215,  223,  225. 

Landgraf  v.  Tanner,  171. 

Lando's  Estate,  In  re,  62,  67,  68. 

Landrum  v.  Loose-Wiles  Biscuit  Co., 
610. 

Landry  v.  American  Creosote  Works, 
301. 

Landry  v.  Bellanger,  38. 

Lane  v.  Ironmonger,  171. 

Lanfennan  v.  Vanzile,  318. 

Lang  v.  State,.  462. 

Lang  v.  Wilmer,  146. 

Langdon  v.  Clayson,  494. 

Langer  v.  Kaufman,  357,  363. 

Langham    v.    Nenny,    131. 

Lanham  v.  Lanham,  72. 

Lanigan  v.  Miles,  198. 

Laning  v.  New  York  Cent.  R.  Co.,  616. 

Laning  v.  Railroad  Co.,  611,  G27. 

Lanniug  v.  Brown,  495. 

Lanning  v.  Chicago  Great  Western  Ry. 
Co.,  632. 


702 


CASES  CITED 
[The  figures  refer  to  pages] 


Lautry  v.  Parks,  604. 

La    Point    v.   Monadnock   Paper   Mill, 

638. 

Lapre  v.  Woronco  St.  Ry.  Co.,  621. 
I^urisa  v.  Tiffany,  76,  127. 
La  Riviere  v.  La  Riviere,  55. 
Larkin   v.   Hecksher,   584. 
Larkin  v.  Woosley,  126,  200. 
La  Rosa  v.  Nichols,  474,  487,  491. 
Larsen  v.  Johnson,  227. 
Larson  v.  Kieburtz,  632. 
Larson   v.   Larson,    199. 
Larson  v.  St.  Paul,  M.  &  M.  R.  Co., 

612. 

La   Rue  v.  Gilkysou,   540. 
La   Rue  v.  Kempf,  327. 
Lasnter  v.  Jamison,  155. 
Lashbrook  v.  Patten,  335. 
Lataillade  v.  Orena,  447,  457. 
Latham  v.  Ellis,  345. 
Latham   v.    Latham,   255. 
Lathrop  v.  Smalley's  Ex'rs,  433. 
Latour   v.    Guillory,    153. 
Latrobe  v.  Dietrich,  475,  496. 
Laubach  v.  Cedar  Rapids  Supply  Co., 

605. 

Lauber   v.    Mast,   252. 
Lauer  v.  Banning,  6. 
Laughlin  v.  Eaton,  108. 
Laverty  v.  Hambrick,  617. 
Lavoie  v.  Dube,  83. 
Law,   In   re,   426. 
Law  v.  Com.,  530,  531. 
Law   v.    Long,    507. 
Law's  Estate,  434. 
Lawder  v.  Larkin,  475,  494,  518. 
Lawler  v.  Androscoggin  R.  Co.,  631. 
Lawler  v.  Railroad  Co.,  629. 
Lawless  v.  Railroad  Co.,  626. 
Lawrence  v.  Morris,  544. 
Lawrence   v.    Sinnamon,   86. 
Lawrence  v.  Willis,  538. 
Lawrence's  Lessee  v.  McArter,  473. 
Laws  v.  State,  558. 
Lawshe  v.  Trenton  Banking  Co.,  234. 
Lawson  v.  Lovejoy,  500. 
Lawson  v.  Scott,  305.     . 
Lawyer  v.  Fritcher,  379. 
Laycock  v.  Laycock,  277,  281. 
Layne  v.  Clark,  426. 
Lea  v.  Lea,  264. 
Leach  v.  Leach,  255,  272. 
Leach  v.  Railroad  Co.,  602. 
Leache  v.  State,  551. 
Leacox  v.  Griffith,  495. 
Leake  v.  J.  R.  King  Dry  Goods  Co., 

332. 
Leake  v.   Lucas,   87, 


Leakey  v.  Maupin,  139. 
Leary    v.    R.    Co.,    619. 
Lease,  In  re,  312,  313,  314. 
Leatherberry  v.  Odell,  588,  689,  591, 

592,  596,  597. 
Leavel  v.  Bettis,  452. 
Leavitt  v.  Leavitt,  10,  11,  16,  237. 
Leaycraft  v.  Hedden,  188. 
Lebanon  v.  Griffin,  392. 
Le  Barren  v.  Le  Barroii,  59,  60,  244 
Le  Blanc,  Succession  of,  152. 
Le  Blauc  v.   Le  Blanc,   152. 
Le  Blanc  v.  Sayers,  233. 
Lechmere  v.  Brotheridge,  188. 
Ledwith  v.  Ledwith,  405,  406. 
Lee  v.  Ashbrook,  605. 
Lee  v.  Brown,  415,  416. 
Lee  v.  Equitable  Life  Assur.  Soc.,  472. 
Lee  v.  Frater,  308. 
Lee  v.  Henderson,  154. 
Lee  v.  Hiberuia  Savings  &  Loan  Soc., 

473. 

Lee  v.  Hodges,  383. 
Lee  v.  Lee,  35,  270. 
Lee  v.  Lord,  646. 
Lee  v.  Muggeridge,  158. 
Lee  v.  Savannah  Guano  Co.,  126,  127. 
Lee  v.  Shankle,  302. 
Lee  v.  State,  8,  49. 
Lee  v.  Yandell,  544. 
Lee's  Will,  In  re,  560. 
Leech  v.  Leech,  280. 
Leefield  v.  Leefield,  71. 
Leeson  v.  Saw  Mill  Phoenix,  620. 
Leete  v.  State  Bank,  196,  197. 
Lefens  v.  Industrial  Commission,  642. 
Lefever  v.  I^efever,  452. 
LeFevre  v.  Laraway,  419. 
Lefler  v.  Oelrichs,  513. 
Legg  v.  Legg,  128,  131. 
Lehigh   Valley  Coal   Co.   v.   Washko, 

562. 
Lehigh   &   Wilkes-Barre    Coal   Co.    v. 

Hayes,  608. 

Lehman  v.  Lehman,  275. 
Lehman  v.   State,   566. 
Lehman  &  Co.  v.  Slat,  201. 
Lehmann  v.  Rothbarth,  401. 
Leibold  v.  Leibold,  325. 
Leimgruber  v.  Leimgruber,  160. 
Lein  v.  Centaur  Motor  Co.  of  Illinois, 

482,  487. 

Leininger  Lumber  Co.  v.  Dewey,  222. 
Leitensdorfer  v.  Hempstead,  506. 
Leith  v.  Leith,  248. 
Lemke  v.  Ady,  335. 
Leinmon  v.  Beeruan,  474,  510,  512. 
Lemon  v.  Hansbarger,  456. 


CASES  CITED 
[The  figures  refer  to  pages] 


703 


Lemons  v.  Biddy,  209. 

Lemons  v.  Harris,  31. 

Lenahan  v.  Pittston  Coal  Min.  Co.,  574. 

Lenderman  v.  Talley,  132,  133. 

Lennox  v.  Eldred,  157. 

Leonard  v.  H.  Weston  Lumber  Co.,  316. 

Leonard  v.  Leonard,  269,  542. 

Leonard  v.  Licker,  463. 

Leonard  v.  Putnam,  442. 

Leonard  &  Sons  v.  Stovve,  172. 

Leopold  v.  Salkey,  587,  593. 

Leros  v.  Parker,  103. 

Le  Roy  v.  Jacobosky,  438. 

Leslie  v.  Bell,  129. 

Leslie  v.  Lewiston,  523. 

Leslie  v.  Proctor  &  Gamble  Mfg.  Co., 

387. 

Lessoff  v.  Gordon,  335,  336. 
Le  Suer  v.  Le  Suer,  8,  52. 
Letot  v.  Peacock,  152. 
Leuppie  v.  Osborn's  Ex'rs,  181. 
Levering  v.  Heighe,  496,  497. 
Levering  v.  Levering,  260. 
Levesque  v.  Charlton  Mills,  608. 
'  Levi  v.  Earl,  212. 
Levy  v.  Brown,  154. 
Levy  v.  Downing,  24,  70. 
Levy  v.  Goldsoll,  76. 
Lewicki  v.  John  C.  Wiardi  &  Co.,  563. 
Lewis,  Ex  parte,  464. 
Lewis  v.  Alston,  539. 
Lewis  v.  Castello,  406. 
Lewis  v.  Edwards,  412. 
Lewis  v.  Eutsler,  308. 
Lewis  v.  France,  87. 
Lewis  v.  Lewis,  10,  11,  18,  19,  62,  64, 

83,  263. 

Lewis  v.  Littlefield,  524,  527. 
Lewis  v.  Lynch,  86. 
Lewis  v.  Missouri,  K.  &  T.  Ry.  Co., 

360. 

Lewis  v.  Railroad  Co.,  626. 
Lewis  v.  Seifert,  612,  626,  627,  629. 
Lewis  v.  Sizemore,  295. 
Lewis  v.  Steele,  336. 
Lewis'  Estate,  In  re,  126. 
Lewis  &  Clark   County  v.   Industrial 

Accident  Board  of  Montana,  636. 
Libby  v.  Berry,  105. 
Liberty  v.  Palermo,  362. 
Libhart  v.  Wood,  589. 
Libman  v.  Libman,  10. 
Lichtenberger  v.  Graham,  129. 
Liebold  v.  Liebold,  325. 
Ligare  v.  Semple,  145. 
Ligon  v.  Wharton,  199,  201. 
Lillard  v.  Turner,  190,  192.   • 
Lilley  v.  Elwin,  589,  590,  G04. 
Lilliankamp  v.  Rippetoe,  106. 


Lillie  v.  Lillie,  270. 

Lilly  v.  Waggoner,  538. 

Lilly  v.  Yeary,  151. 

Limpus  v.   London  General   Omnibus 

Co.,  646. 

Lincecum  v.  Lincecum,  295. 
Lincoln  v.  Buckmaster,  542. 
Lincoln  v.  Lincoln,  56. 
Linden  v.   McClintock,   114. 
Lindley  v.  Cross,  208. 
Lindner's  Estate,  In  re,  344. 
Lindo  v.  Bellsario,  49. 
Lindsay  v.  Glass,  599. 
Lindsay  v.  Lindsay,  280,  463. 
Lindsay  v.  Oregon  Short  Line  R.  Co., 

109,  110. 

Line  v.  Lawder,  447. 
Linebaugh  v.  Linebaugh,  5. 
Lingen  v.  Lingen,  304. 
Link  v.  New  York  Life  Ins.   Co.,  514. 
Linquist  v.  Hodges,  633. 
Linsey  v.  Jefferson,  50. 
Linton  v.  Walker,  386,  396,  455,  456. 
Lipinsky  v.  Revell,  83. 
Lipps  v.   Milwaukee   Electric   Ry.   & 

Light  Co.,  521. 
Lipsey  v.  Battle,  305. 
Lister  v.  Lister,  229,  231,  288. 
Lister's  Agricultural  Chemical  Works 

v.  Fender,  577. 

Litchenstein  v.  Brooks,  596,  598. 
Litchfield  v.  Cudworth,  140,  141. 
Little  v.  Duncan,  499,  500. 
Little  v.  Marsh,  132. 
Little  v.  Nicholson,  153. 
Little  Miami  R.  Co.  v.  Stevens,  630. 
Little  Miami  R.  Co.  v.  Wetmore,  648. 
Little  Rock  Gas  &  Fuel  Co.  v.  Cop- 

pedge,  109,  111. 
Little  Rock  &  Ft.  S.  Ry.  Co.  v.  Barker, 

377. 

Little  Rock  &  M.  R.  Co.  v.  Barry,  628. 
Littler  v.  Geo.  A.  Fuller  Co.,  641. 
Littleton  v.  Sain,  186. 
Livermore  v.  Bemis,  457. 
Livermore  v.  Ratti,  444,  451. 
Livernois'  Estate,  In  re,  414. 
Livingston,  Ex  parte,  310. 
Livingston   v.  Conaut,  88. 
Livingston   v.  Livingston,   2,   231. 
Lloyd,  In  re,  305. 
Lloyd  v.  Fulton,  226,  235. 
Lloyd  v.  Lee,  157. 
Lloyd  v.  Lloyd,  19,  276. 
Locke  v.  Smith,  482,  514. 
Lockwood   v.  Corey,   164. 
Lockwood  v.  Thomas,  178. 
Loftus  v.  Loftus,  263. 
Logan  v.  Fairlee,  405. 


704 


CASES  CITED 
[The  figures  refer  to  pagesj 


Logan  v.  Farlee,  407. 

Logan  v.  Gardner,  475. 

Logan  v.  Gay,  413. 

Logan  v.  Murray,  371,  378,  384. 

Logan  v.  Vanarsdall,  534. 

Lohmuller  v.  Lohmuller,  251. 

Loker  v.  Gerald,  245,  290. 

Louimis  v.  Deets,  385. 

London    v.    G.    L.    Anderson    Brass 

Works,  227. 
London  Guarantee  &  Ace.  Co.  v.  Horn, 

645. 
London  &  N.  W.  Ry.  Co.  v.  McMichael, 

490. 

Long  v.  Baxter,  23. 
Long  v.  Booe,  121. 
Long  v.  Dufer,  311. 
Long  v.  Foley,  610. 
Long  v.  Folwell  Bros.  &  Co.,  613. 
Long  v.  Fox,  545. 
Long  v.  Long,  10,  12,  448,  458. 
Long  v.  Morrison,  112. 
Long  v.  Norcom,  416. 
Long  v.  Smith,  352. 
Longendyke  v.  Longendyke,  105. 
Longhofer  v.  Herbel,  360. 
Longino  v.  Delta  Bank,  428. 
Longstreet  v.  Tilton,  429. 
Loomis  v.  Deets,  385. 
Lord  v.  Goldberg,  583. 
Lord  v.  Hough,  409. 
Lord  v.  Poor,  334,  354,  365. 
Lord  v.  Thomas,  587. 
Lorimer  v.  Lorimer,  45,  48. 
Loring  v.  Bacon,  458. 
Los  Angeles  County  v.  Winans,  434. 
Losey  v.  Bond,  503. 
Lotz  v.  Hanlon,  647. 
Loucks  v.  Dutcher,  332. 
Loud  v.  Loud,  240. 
Louis  v.  Elfelt,  594. 
Louisville  Bolt  &  Iron  Co.  v.  Hart,  620. 
Louisville,  E.  &  St.  L.  Consol.  R.  Co. 

v.  Hawthorn,  632. 
Louisville,  H.  &  St.  L.  R.  Co.  v.  Lyons, 

366,  520. 
Louisville,  N.  O.  &  T.  R.  Co.  v.  Con- 

roy,  653. 

Louisville  &  N.  R.  Co.  v.  Brown,  632. 
Louisville  &  N.  R.  Co.  v.  Collins,  630. 
Louisville  &  N.  R.  Co.  v.  Cox,  589. 
Louisville  &  N.  R.  Co.  v.  Gillen,  648. 
Louisville  &  N.  R.  Co.  v.  Kemp,  634. 
Louisville  &  N.  R.  Co.  v.  Kinman,  111. 
Louisville  &  N.  R.  Co.  v.  Pendleton's 

Adm'r,  575. 
Louisville   &    N.    R.    Co.    v.    Shivell's 

Adm'x,  621. 
Louisville   &   N.   R.    Co.    v.    Wyatt's 

Adm'r,  622. 


Loux  v.  Loux,  262. 

Love  v.  Logan,  429. 

Love  v.  Love,  44,  48,  50,  157. 

Love  v.  Moynehan,  158. 

Love  v.  Robertson,  152,  153. 

Love's  Estate,  In  re,  38,  43. 

Lovell   v.   House   of   Good   Shepherd, 

345. 

Lovell  v.  Minot,  432,  433,  435. 
Levering  v.  Levering,  273. 
Lovett  v.  Robinson,  163. 
Lovewell  v.  Schoolfleld,  186. 
Loving  v.  Atlantic  Southern   R.  Co., 

618. 

Lowe  v.  Sinklear,  605. 
Lowe  v.  Walker,  145. 
Lowell  v.  Daniels,  156. 
Lowery  v.  Cate,  525. 
Lown  v.  Spoon,  514. 
Lowrie  v.  Oxendine,  362. 
Lowry  v.  Coster,  50. 
Lowry  v.  Drake's  Heirs,  507. 
Lowry  v.  Houston,  134. 
Lowry  v.  State,  458. 
Loy  v.  Loy,  362. 
Loyd's  Estate,  In  re,  303. 
Lozano   v.  Martinez,  346. 
Lucas  v.  Lucas,  231,  253. 
Lucas  v.  Parsons,  535. 
Luce  v.  Jestrab,  474,  494,  500,  515. 
Luck  v.  Luck,  350. 
Ludlam  v.  Ludlam,  561. 
Ludwick  v.  Com.,  268. 
Luettjohann  v.  Luettjohann,  250. 
Lufkin  v.  Harvey,  324. 
Lufkin  v.  Mayall,  516,  517. 
Luhrs  v.  Elmer,  562. 
Luick  v.  Arends,  116. 
Lumley  v.  Gye,  643,  644. 
Lumley  v.  Wagner,  599,  600. 
Lum  Lin  Ying,  In  re,  54,  67,  71. 
Lumsden,  Case  of,  490. 
Lunay  v.  Vantyne,  315,  316. 
Lundy,  In  re,  464,  465. 
Lunt  v.  Aubens,  405. 
Luper  v.  Luper,  258,  261,  262,  269. 
Luppie  v.  Winans,  312,  404. 
Luse  v.  Oaks,  101. 
Lusk  v.  Lusk,  350,  351. 
Lusk  v.  Patterson,  412. 
Lusk  v.  Phelps,  611,  621,  634. 
Lutz's  Estate,  In  re,  309. 
Lyell  v.  Walbach,  205. 
Lyman  v.  Conkey,  458. 
Lyman  v.  Lyman,  12. 
Lynam  v.  People,  462. 
Lynch  y.  Doran,  538. 
Lynch  v.  Knight,  118. 
Lynch  v.  Nurdin,  521. 
Lynch  v.  Smith,  521. 


CASES  CITED 
[The  figures  refer  to  pages] 


705 


Lynde  v.  Budd,  503. 

Lyndon  v.  Lyndon,  13,  14. 

Lyon  v.   Lash,  64. 

Lyon  v.  Lyon,  10,  242,  250,  253. 

Lyons  v.  Blenkin,  349. 

Lyons  v.  New  York  City  R.  Co.,  110. 

Lyons  v.  Ryerson,  633. 

Lyons'  Estate,  In  re,  325. 

Lyster  v.  Lyster,  266. 

Lyttle  v.  Railway  Co.,  607, 

M 

Maben  v.  Maben,  253,  256. 
McAlister  v.  Olmstead,  452. 
McAllister  v.  Com.,  421. 
McAllister  v.  Gatlin,  486. 
McAllister  v.  McAllister,  260,  275. 
McAlpine  v.  Kohler  &  Chase,  155. 
McAnally   v.    Hawkins    Lumber    Co., 

208. 

McAndrews  v.  McAndrews,  266. 
McAnnulty  v.  McAnnulty,  226,  227. 
Macauley  v.  Press  Pub.  Co.,  589. 
McBee  v.  McBee,  268. 
Macbeth-Evans   Glass  Co.  v.   Schnel- 

bach,  603. 
McBride    v.    Jerry    Madden    Shingle 

Co.,  652. 

McBride  v.  O'Neal,  644. 
McBride  v.  Sullivan,  301. 
McCaddin  v.  McCaddin,  81. 
McCaffrey  v.  Benson,  34. 
McCaig  v.  State,  32. 
McCarter  v.  McCarter,  178. 
McCarthy  v.  Boston  &  L.  R.  Corp., 

370. 

McCarthy  v.  Heiselman,  335. 
McCarthy  v.  Marsh,  564. 
McCarthy    v.    Railroad    Corporation, 

362. 

McCarthy  v.  Second  Parish,  654. 
McCartney  v.  Titsworth,  226. 
McCartney  &  Sons'  Co.  v.  Carter,  86. 
McCarty  v.  McCarty,  64. 
McCarty  v.  Woodstock  Iron  Co.,  511, 

518. 

McCauley  v.  Elrod,  601. 
McCauley  v.  Wood,  335. 
McCaull  v.  Braham,  600. 
McCausland,  In  re,  43,  51. 
McCausland's  Estate,  In  re,  40,  44. 
McCaw  v.  Blewit,  391. 
McClain  v.  Davis,  544,  546. 
McClain  v.  McClain,  28,  271. 
McClanahan  v.  McClanahan,  39L 
McClanahan  v.  Williams,  507. 
McCleary  v.  Menke,  444. 
McClellan  v.  Filson,  183. 

TiFF.P.&D.REL.(3D  ED.)— 45 


McClenaghan  v.  Brock,  648 
McClendon  v.  Harlan,  457. 
McCline  v.  Ridley,  309. 
McClintic  v.  McClintic,  126. 
McCloskey  v.  Cyphert,  359,  365. 
McClurg,  Appeal  of,  77,  262. 
McClurg  v.  Terry,  7,  8,  60. 
McColligan   v.   Pennsylvania   R.   Co., 

573. 

McCollister  v.  Yard,  312. 
McConkey  v.  Barnes,  477. 
McConkey  v.  Cockey,  447. 
McConnell  v.  McConnell,  81,  260,  481. 
McCook  County  v.  Kammoss,  392. 
McCord  v.  Bright,  234. 
McCord  v.  McCord,  64. 
McCorkle  v.  Goldsmith,  205. 
McCormic  v.  Leggett,  492. 
McCormick  v.  Demary,  589. 
McCormick  v.  Holbrook,  205. 
McCormick  v.  Littler,  538,  540,  541. 
McCormick  v.  McCormick,  289. 
McCormick  Harvesting  Mach.  Co.  T. 

Zakzewski,  617. 

McCormick's  Estate,  In  re,  312,  313. 
McCosker  v.  Railroad  Co.,  625. 
McCoy  v.  McCoy,  263. 
McCrady  v.  Pratt,  332. 
McCreery  v.  Davis,  34,  242,  290. 
McCreery  v.  Scully,  172. 
McCreery,   Lessee   of  v.   Somerville, 

564. 

McCreery  &  Co.  v.  Martin,  172. 
McCrillis  v.  Bartlett,  541,  556. 
McCrillis  v.  How,  482. 
McCrocklin  v.  McCrocklin,  241. 
McCubbin  v.  Patterson,  240. 
McCue  v.  Garvey,  182. 
McCullen  v.  McCullen,  32,  57,  58,  59. 
McCullough  v.  Finley,  495. 
McCullough  Iron  Co.  v.  Carpenter,  577, 

584. 

McCune  v.  Goodwillie,  514. 
McCurdy  v.  Canning,  149. 
McCutchen  v.  McGahay,  177. 
McCutchen  v.  Roush,  433,  434. 
McCutcheon  v.  McGahay,  176. 
McDaniel  v.  Jonesboro  Trust  Co.,  160. 
McDaniel  v.  Mann,  411. 
McDaniel  v.  Whitman,  130. 
McDaniels  v.  McClure,  86,  87. 
McDavid  v.  Adams,  125. 
McDeed  v.  McDeed,  22,  25,  57. 
McDevitt,  In  re,  312,  314. 
McDonald  v.  California  Timber  Co., 

607,  622. 
MacDonald   v.   MacDonald,   252,   253, 

258. 
McDonald  v.  Rozen,  164. 


706 


CASES  CITED 
[The  figures  refer  to  page*., 


McDonald  v.  Smith,  231,  233. 
McDonald  v.  Spring  Valley,  473. 
Macdonnell  v.  Harding,  421. 
McDonnell  v.  Oceanic  Steam  Nav.  Co., 

614. 

McDonnell  v.  Solomon,  87. 
McDonough  v.  Pelham  Hod  Elevating 

Co.,  622. 

McDow  v.  Brown,  444. 
McDowell  v.  Caldwell,  415. 
McDowell  v.  McDowell,  160. 
McDowell  v.  Charles,  135. 
McDowle,  Case  of,  353. 
McDuff  v.  Beauchamp,  146,  149. 
McDuffee  v.  McDuffee,  280. 
McDuffee's  Adm'x  v.  Boston  &  M.  R. 

R.,  619. 

McDuffle  v.  Mclntyre,  440. 
McElfresh  v.  Kirkendall,  98,  10L 
McElhenny,  Appeal  of,  445. 
McElligott  v.  Randolph,  626. 
McElroy,  Case  of,  18. 
McEvoy  v.  Tucker,  539. 
McFall  v.  Simmons,  462. 
McFarland  v.  Johnson,  205. 
McFarlane  v.  McFarlane,  289. 
McFerren,  Ex  parte,  472,  514. 
McGahay  v.  Williams,  177,  260. 
McGan  v.  Marshall,  506. 
McGarr    v.    National    &    Providence 

Worsted   Mills,   376. 
McGarvey's  Guardian  v.  McGarvey's 

Adm'r,  326. 

McGaugh  v.  Mathis,  61,  63. 
McGee  v.  Cordage  Co.,  626. 
McGeorge  v.  Egan,  169. 
McGiffert  v.   McGiffert,  248. 
McGill  v.  Deming,  245,  2S7,  289. 
McGill  v.  McGill,  30,  2G8. 
McGinnis  v.  Chicago,  R.  I.  &  P.  Ry. 

Co.,  656. 

McGovern  v.  Inter-urban  R,  Co.,  109. 
McGrath,  In  re,  404. 
McGrath  v.  Bell,  592. 
McGrath  v.  Fogel,  616. 
McGrath  v.  Railroad  Co.,  618. 
McGreevey  v.  Boston  Elevated  R.  Co., 

520. 

McGregor  v.  Comstock,  564. 
McGregor  v.   McGregor,   114,  239. 
McGuire  v.  Brown.  308. 
McGuire  v.  Cook,  194. 
McGuire  v.  People,  470,  471. 
McGurk  v.  McGurk,  277,  280. 
Machado  v.  Bonet,  257. 
McHarge  v.  M.  M.  Newcomer  &  Co., 

652,  654. 

McHenry  v.  Brackin,  68. 
Mcllvain  v.  Scheibley,  28. 


Mclnery  v.  Buffalo  &  S.  R.  Corp.,  640. 

Macintosh  v.  Abbott,  590. 

Mclntyre  v.  People,  558,  559. 

Mclntyre  v.  Sholty,  546,  547. 

Mclsaac  v.  Adams,  487. 

Mack  v.  Brammer,  441. 

Mack  v.  Handy,  268. 

McKamy  v.  Cooper,  490. 

McKanna  v.  Merry,  411,  484,  485,  488. 

McKay  v.  McKay,  89,  351. 

McKee  v.  Bevins,  147. 

McKee  v.  Cunningham,  81,  178. 

McKee  v.  Ingalls,  557. 

McKee  v.  Reynolds,  205. 

McKee  v.  Thomas,  438. 

McKee,  Lessee  of,  v.  Pfout,  141. 

McKeever  v.  Ball,  439. 

McKellar  v.  Harkins.  309,  317. 

McKelway,  In  re,  147. 

McKelway's  Estate,  In  re,  147. 

McKenna  v.  McKenna,  38,  41. 

McKennan  v.  Phillips,  241. 

McKillop    v.     Superior    Shipbuilding 

Co.,  626. 

McKim  v.  McKim,  348,  349. 
Mackin  v.  Boston  &  A.  R.  R.,  627. 
Mackin   v.   Detroit-Timkin   Axle   Co., 

637. 

Mackin  v.  U.  S.,  269. 
Mackinley  v.  McGregor,  169. 
McKinley  v.  Railroad  Co.,  650. 
McKinney  v.  Clarke,  2,  17. 
McKinney  v.  Jones,  430,  439. 
McKinney  v.  McKinney,  265. 
McKinny  v.  State,  531. 
McKnight  v.  Kingsley,  222. 
McKnight's  Ex'rs  v.  Walsh,  331. 
McLaughlin  v.  Kemp,  104. 
McLaughlin  v.  McLaughlin,  63,  72. 
McLaughlin's  Estate,  In  re,  39,  41,  65. 
Maclay  v.  Love,  212. 
McLean  v.  Burginger,  154. 
McLean  v.  Jackson,  484. 
McLean  v.  Longlands,  231. 
McLean  v.  Swanton,  564. 
McLemore  v.  Pinkston,   125. 
McLennan  v.  McLennan.  70. 
McLeod  v.  Board,  215,  216. 
McLeod  v.  Poe,  210. 
McLoskey  v.  Reid,  442. 
McLoud  v.  State,  299. 
McMahan  v.  Bangs,  622. 
McMahill  v.  McMahill,  81,  326. 
McMahon  v.  Northern  Cent.  R.  Co., 

523. 

McManus  v.  Crickett,  649. 
MacMaster  v.  Fobes,  318. 
McMillan   v.   Page,   576,  577. 
McMillan  v.  Vanderlip,  604, 


CASES  CITED 
[The  figures  refer  to  pages] 


707 


McMillen  v.   Lee,   323,  324. 
McMinn  v.  Richmonds,  482. 
McMorrow   v.    Dowell,    362. 
McMullan  v.  Dickinson  Co.,  598,  599. 
McMullen  v.  Blecker,  429. 
McMullen  v.  McMullen,  77. 
McMurray  v.  Bodwell,  151. 
McMurray  v.  Boyd,  592. 
McMurtry  v.  Fairley,  470. 
McMurtry  v.  Webster,  184. 
McMyn,   In   re,    182. 
McNabb  v.  Clipp,  412. 
McNaghten,  Case  of,  548,  550. 
McNair  v.  Toler,  567. 
McNamara  v.  McNamara,  278. 
McNeal  v.  McKain,  337. 
McNeer  v.  McNeer,  196,  197. 
McNeil  v.  Williams,  201. 
McNemar  v.  Colin,  102,  170. 
McNemar  v.  McNemar,  315. 
McPherson  v.  Day,  464. 
McPhillips  v.  McPhillips,  453. 
McQueen  v.  Fulgham,  101. 
McRae,  In  re,  313,  316. 
McRae  v.  Battle,  225. 
McReynolds  v.  Stoats,  489. 
Macri  v.  Macri,  22. 
McShan  v.  McShan,  347. 
McSparran  v.  Neeley,  556. 
McSurley  v.  Venters,  308,  309. 
McVeigh  v.  U.  S.,  567. 
McWhorter  v.  Benson,  431. 
McWilliams,  Ex  parte,  535. 
Macy  v.  Railroad  Co.,  627. 
Madalina,  Ex  parte,  295. 
Madden's  Adm'r  v.  Railway  Co..' 630, 

632. 

Madison  County  v.  Johnston,  458. 
Magahay  v.  Magahay,  268. 
Magarahan  v.  Wright,  584. 
Mageau  v.  Great  Northern  R.  Co.,  108. 
Magee  v.  Holland,  368,  369,  375,  385, 

386. 

Magee  v.  Magee,  354,  355. 
Magee  v.  Toland,  129. 
Magee  v.  Welsh,  486. 
Magee  v.  Young,  3. 
Maggett  v.  Roberts,  38. 
Magida  v.  Wiesen,  603. 
Ma  gill  v.  Magill,  251. 
Magniac  v.  Thompson,  219,  221,  222, 

237. 

Magnuson  v.  O'Dea,  385. 
Magone  v.  Portland  Mfg.  Co.,  614,  617. 
Magowan  v.  Magowan,  290. 
Magrath  v.  Magrath,  258. 
Maguinay  v.  Saudek,  324,  376,  384. 
Maguire  v.  Maguire,  3. 
Mahan  v.  Clee,  620. 


Maharajah,  The,  608. 

Maher  v.  Benedict,  335,  336. 

Maher's  Estate,  In  re,  48. 

Mahnken  v.  Mahnken,  253. 

Mahon  v.  Daly,  596. 

Mahon  v.  Gormley,  208. 

Mahone  v.  Mahone,  268. 

Mahoney  v.  Park  Steel  Co.,  468 

Maier  v.  Brock,  63,  64. 

Maier  v.  Waters,  63,  64. 

Maillefer  v.  Saillot,  70. 

Main  v.  Main,  105,  243. 

Maiorano  v.  Baltimore  &  O.  R.  Co., 

563. 

Major  v.  Holmes,  159. 
Makarell  v.  Bachelor,  483. 
Malaney  v.  Cameron,  315,  319. 
Malcolm  v.  Fuller,  621,  634. 
Malcom  v.  Fuller,  621. 
Maiden  Hospital  v.  Murdock,  174. 
Mali  v.  Lord,  648. 
Mallory's  Adm'rs  v.  Mallory's  Adm'r, 

226,  227. 

Mallow  v.  Bastes,  216. 
Maloney  v.  Maloney,  258. 
Maloney  v.  People,  307. 
Manby  v.  Scott,  176,  177. 
Manchester  v.  Smith,  364. 
Mandel  Bros.  v.  Ringstrom,  84,  85,  86. 
Mangam  v.  Peck,  101. 
Mangam  v.  Railroad  Co.,  521. 
Mann  v.  McDonald,  419. 
Mann  v.  People,  307. 
Manning  v.  Boylinson,  470. 
Manning  v.  Gannon,  504. 
Manning  v.  Johnson,  475,  512. 
Manning  v.  Manning,  452,  456. 
Manning  v.  Riley,  227. 
Manning  v.  Wells,  324,  332. 
Manny  v.   Rixford,   229. 
Manor  Nat.  Bank  v.  Lowery,  210. 
Mansfield  v.   Gordon,  496. 
Mansfield  v.  Neff,  308. 
Mansfield  v.  Watson,  556. 
Mansfield  Ry.,  Light  &  Power  Co.  T. 

Barr,  633. 

Mansfield's  Estate,  In  re,  454. 
Mansur  v.  Pratt,  469.' 
Manuel  v.  Beck,  313. 
Manvell  v.  Thomson,  370,  376,  380,  383, 

384. 

Manwaring  v.  Powell,  147,  148. 
Maples    v.   Wightman,   473. 
Mapstrick  v.  Ramge,  603. 
Maraman's  Adm'r  v.  Maraman,  231. 
Marble   Co.   v.   Ripley,   599. 
Marburg  v.  Cole,  149. 
March  v.   Bennett,   435. 
Mardt  v.  Scharmach,  146,  234. 


708 


CASES  CITED 
[The  figures  refer  to  pages] 


Margetts   v.    Barringer,    186. 
Marheineke  v.  Grothaus,  417. 
Marion  v.   Railroad   Co.,  650. 
Markel  v.  De  Francesco,  210. 
Markham  v.  Markham,  598. 
Markinovich  v.  Northern  Pac.  R.  Co., 

en. 

Marklewitz  v.  Olds  Motor  Works,  613. 

Markover  v.  Krauss,  312. 

Marks  v.  Crume,  13. 

Marks  v.  Loewenberg,  161. 

Marks  v.  McElroy,  519. 

Marks  v.  Marks,  53. 

Marks  v.  Wooster,  352. 

Marlow  v.  Barlew,  205,  206. 

Marlow  v.  Pitfeild,  181,  483. 

Marone  v.  Marone,  62. 

Marquam  v.  Domestic  Engineering  Co., 
584. 

Marquardt  v.  Flaugher,  87. 

Marquette  Cement  Mfg.  Co.  v.  "Wil- 
liams, 630. 

Marre  v.  Marre,  13,  31. 

Marris  v.  Marris,  275. 

Marsh,  Ex  parte,  219. 

Marsh   v.   Chickering,   607,   615. 

Marsh  v.  Fisher,  151. 

Marsh  v.  Hand,  651,  652. 

Marsh  v.  Marsh,  203,  257,  265. 

Marsh  v.  Whittington,  13. 

Marshak  v.  Marshak,  218,  260. 

Marshall  v.  Chicago,  R.  I.  &  P.  R.  Co., 
614. 

Marshall  v.  Lane,  146. 

Marshall  v.  Marshall,  239,  279. 

Marshall  v.  Oakes,  96,  97. 

Marshall  v.  Reams,  305,  346,  349,  350. 

Marshall  v.  Rench,  390. 

Marshall  v.  Rutton,  156,  218. 

Marshall  v.  Wing,  469. 

Marshall  v.  Wymond,  337. 

Marshall  Field  &  Co.  v.  McFarlane, 
199. 

Marston  v.  Rue,  155. 

Martin,  Ex  parte,  313. 

Martin  v.  Banks,  200. 

Martin  v.  Caldwell,  451. 

Martin  v.   Collison,  224. 

Martin  v.  Davis,  434. 

Martin  v.  Dwelly,  165  166,  167. 

Martin  v.  Foster's  Ex'r.,  452. 

Martin  v.  Hunt,  594. 

Martin  v.  Martin,  28, 129,  229,  230,  244, 
269. 

Martin  v.  Payne,  370,  371,  380,  381. 

Martin  v.   People,  328. 

Martin  v.  Robson,  96,  101,  102. 

Martin  v.  State,  530,  558. 


Martin  v.  Tobin,  503,  504. 
Martin  v.  Wabash  R.  Co.,  616. 
Martin  Bros.  v.  Vertres,  87. 
Martin's  Adm'r  v.  Fielder,  401. 
Martin's  Heirs  v.  Martin,  32. 
Martinez  v.  Meyers,  434. 
Martrick  v.  Linneld,  388. 
Marts  v.  Brown,  442. 
Martz  v.  Fulhart,  332. 
Marvin  v.  Marvin,  14,  15. 
Marvin  v.  Schilling,  441. 
Marx  v.  McGlynn,  564,  565. 
Maryland  Casualty   Co.   v.   Pillsbury, 

639. 

Marzette  v.  Cronk,  50. 
Mason  v.  Buchanan,  430. 
Mason  v.  McNeill's  Ex'rs,  130. 
Mason  v.  Morgan,  135. 
Mason  v.  Mason,  107,  455. 
Mason  v.  Wait,  438,  439. 
Mason  v.  Williams,  346,  352,  409. 
Mason  v.  Wright,  487,  518. 
Massachusetts    General    Hospital    v. 

Fairbanks,  412,  540. 
Massy  y.  Rowen,  186. 
Masten  v.  Masten,  286. 
Masterman  v.  Masterman,  148,  149, 

202. 

Masterson  v.  Harris,  315. 
Masterson  v.  Howard,  567. 
Masterson's  Estate,  In  re,  316,  404. 
Matchin  v.  Matchin,  248. 
Mather  v.  Brokaw,  587,  604. 
Mathes  v.  Bennett,  430. 
Mathew  v.  Brise,  418. 
Matnews  v.  Cowan,  527. 
Mathewson   v.   Mathewson,   248,   253, 

279. 
Mathewson  v.  Phoenix  Iron  Foundry, 

3,  43,  44,  46. 
Mathison  v.  Minneapolis  Street  R.  Co., 

637,  638. 

Matney  v.  Bush,  639. 
Matre  v.  Sankey,  320. 
Mattar  v.  Wathen,  172,  173. 
Matteote's  Estate,  In  re,  49,  241. 
Matteson  v.  R.  Co.,  110,  111. 
Matthes  v.  Matthes,  22,  23,  62. 
Matthew  v.  R.  Co.,  109. 
Matthewman,  Case  of,  189,  191. 
Matthews  v.  Baxter,  555,  556. 
Matthews  v.  Missouri  Pac.  R,  Co.,  372, 

373. 

Matthews  v.  Park  Bros.  &  Co.,  590. 
Matthews  v.  Terry,  601. 
Matthews  v.  Tiestel,  96. 
Matthewson  v.  Perry.  356.  384. 
Matthiessen  &  Hegeler  Zinc  Co.  v.  In- 
dustrial Board,  636. 


CASES  CITED 
[The  figures  refer  to  pages] 


709 


Matthiessen  &  Weichers  Refining  Co. 

v.  McMahon's  Adm'r,  542. 
Mattingly  v.  Cora.,  464. 
Mattingly  v.  Montgomery,  647. 
Mattocks  v.  Stearns,  141,  142. 
Mattoon  v.  Cowing,  457,  459. 
MattOx  v.  Mattox,  284. 
Mattson  v.  Minnesota  &  N.  W.  R.  Co., 

523. 

Mauchle   v.    Panama-Pacific   Interna- 
tional Exposition  Co.,  647. 
Mauldin    v.    Southern    Shorthand    & 

Business  University,  482,  484,  486. 
Maunder  v.  Venn,  370,  380. 
Maupin's  Ex'r  v.  Dulany's  Devisees, 

416. 

Maurer,  Appeal  of,  188. 
Maurer  v.  Rogers,  610. 
Mauro  v.  Ritchie,  404,  405. 
Maxey  v.  Logan,  148. 
Maxsom,  Lessee  of,  v.  Sawyer,  406. 
Maxwell,  Ex  parte,  405. 
Maxwell  v.  Boyd,  328. " 
Maxwell  v.  Jurney,  200. 
Maxwell  v.  Maxwell,  251,  391. 
May  v.  Calder,  396. 
May  v.  Duke,  425. 
May  v.  Josias,  172. 
May  v.  May,  387,  435,  445,  446. 
May  v.  Smith,  84. 
Mayberry  v.  Northern  Pac.  Ry.  Co., 

656. 

Mayer  v.  Davis,  296,  300. 
Mayer  v.  Lithauer,  83. 
Mayfield  v.  Clifton,  133. 
Mayhew  v.  Mayhew,  250. 
Mayhew  v.  Thayer,  176,  180. 
Maynard  v.  Hill,  3,  5,  6,  198,  292. 
Mayo  v.  Bank  of  Gleason,  196. 
Mays  v.  State,  328. 
Mayton  v.  Railway  Co.,  623. 
Maze's  Ex'rs  v.  Maze,  223,  224. 
Meade's  Estate,  In  re,  38,  50. 
Meadows  v.  Meadows,  391. 
Meagher  v.  Harjo,  55. 
Meaher  v.  Mitchell,  180. 
Meakings  v.  Cromwell,  564. 
Mears  v.  Bickford,  355. 
Mears  v.  Sinclair,  417. 
Measham  v.  McNair,  87. 
Mechling  v.   Meyers,  469. 
Medbury  v.  Watrous,  514,  517. 
Medrano  v.  State,  14. 
Meech  v.  Stoner,  109. 
Meehan  v.  Edward  Valve  &  Mfg.  Co., 

52,  53. 

Meehan's  Estate,  In  re,  63. 
Meek  v.  Pacific  Electric  R.  Co.,  112. 


Meeks  v.  Southern  Pac.  R,  Co.,  523. 
Meese  v.  Fond  du  Lac,  108,  109,  112. 
Meffert  v.  Meffert,  351. 
Megginson,  Estate  of,  43. 
Mehrhoff  v.  Mehrhoff,  118,  120. 
Meier  &  Frank  Co.  v.  Bruce,  159. 
Meier  &  Frank  Co.  v.  Mitlehner,  86, 

170. 

Meister  v.  Moore,  38,  39,  44,  65,  66. 
Melcher  v.  Melcher,  39. 
Meldowney  v.  Meldowney,  264. 
Mellanson  v.  Mellanson,  77. 
Mellen  v.  Thomas  Wilson  Sons  &  Co., 

626. 

Mellinger's  Adm'r  v.  Bausman's  Trus- 
tee, 197. 

Mellish  v.  Mellish,  401,  450. 
Mellor  v.  Mfg.  Co.,  619. 
Mells,  In  re,  425. 
Melton  v.  State,  48. 
Memphis   Steel  Const.   Co.  v.  Lister, 

370. 

Menage  v.  Jones,  440. 
Mendelson  v.  Bronner,  577. 
Mendes  v.  Mendes,  451. 
Mendiola  v.  Gonzales,  563. 
Meraman's  Heirs  v.  Caldwell's  Heirs, 

141. 

Mercantile  Exch.  Bank  v.  Taylor,  206. 
Mercein  v.  People,  347. 
Mercer  v.  Jackson,  361,  375. 
Mercer   v.   Walmsley,   370,   371,   379, 

380,  383. 

Meredith  v.  Crawford,  518. 
Merida  v.  Cummings,  475. 
Merithew  v.  Ellis,  360. 
Merrell  v.  Moore,  14,  151. 
Merrell  v.  Purdy,  199,  205,  207,  213. 
Merrells  v.  Phelps,  457. 
Merriam  v.  Boston,  C.  &  F.  R.  Co., 

157. 
Merriam    v.    Cunningham,    466,    487, 

488,  490. 

Merriam  v.  Merriam,  81. 
Merriam  v.  Patrick,  155. 
Merriam  v.  Wilkins,  499. 
Merrick  v.  Betts,  31. 
Merrill  v.  Hussey,  362. 
Merrill  v.  Marshall,  90. 
Merrill  v.  Moore,  14,  150. 
Merrill  v.  Smith,  126. 
Merrimack  County  v.  Kimball,  536. 
Merritt  v.  Cravens,  121. 
Merritt  v.  Scott,  220. 
Merritt  v.  Swimley,  350,  353. 
Merritt  v.  Wallace,  431. 
Merry  v.  Bergfeld,  544. 
Mertens  v.  Schlemme,  210. 
Messenger  v.  Messenger,  351. 


710 


CASES  CITED 
[The  figures  refer  to  pages] 


Messer    v.    Manufacturers'    Light    & 

Heat  Co.,  641. 

Messer  v.  Smyth,  199,  206,  207. 
Metayer  v.  Grant,  613. 
Metcalf  v.  Cook,  188. 
Meton  v.  State  Industrial  Ins.  Dept, 

42. 
(Metropolitan    Bank    of    St.    Louis   v. 

Taylor,  188. 

Metteote's  Estate,  In  re,  49. 
Mettler  v.  Snow,  171,  172. 
Metzinger  v.  New  Orleans  Board  of 

Trade,  652. 

Meurin  v.  Kopplin,  466. 
Meuschke  v.  Peck,  173. 
Mewhlrter  v.  Hatten,  103,  110,  111. 
Mews  v.  Mews,  231. 
Meyer  v.  Haworth,  157. 
Meyer  v.  Kinzer,  153. 
Meyer  v.  Ladewig,  609. 
Meyer  v.  McCabe,  198. 
Meyer  v.  Meyer,  16. 
Meyers,  Ex  parte,  462. 
Meyers  v.  Albert,  153. 
Meyers  v.  Ideal  Steam  Laundry,  614. 
Meyers  v.  Meyers,  31. 
Michael  v.  Locke,  434. 
Michael  v.  Morey,  219. 
Michael  v.  Stanley,  618. 
Michels,  In  re,  462. 
Michigan   Cent. ,  R.    Co.   v.    Coleman, 

108,  109,  615. 

Michigan  Cent.  R.  Co.  v.  Dolan,  611. 
Michigan  Cent.  R.  Co.  v.  Gilbert,  611. 
Michigan  Cent.  R.  Co.  v.  Vreeland, 

634. 

Michoud  v.  Girod,  419. 
Mickels  v.  Fennell,  58. 
Micou  v.  McDonald,  205,  209. 
Middlebury  College  v.  Chandler,  484. 
Mlddletori  v.  Hoge,  499. 
Middleton  v.  Middleton.  258. 
Middleton  v.  Nichols,  382. 
Middleton  v.  Texas  Power  &  Light 

Co.,  637. 

Mighell  v.  Stone,  382. 
Milage  v.  Woodward,  597. 
Milburne  v.  Byrne,  643. 
Miles  v.  Boyden,  396,  468,  469. 
Miles  v.  Chilton,  31. 
Miles  V.  Cuthbert,  385. 
Miles  v.  Lingerman,  157,  489,  516. 
Miles  v.  Williams,  139. 
Milford  v.  Worcester,  41. 
Mill  v.  Brown,  463,  464. 
Millar  v.  Cuddy,  605. 
Millar  v.  Millar,  16,  56. 
Millard  v.  Hewlett.  518, 
Miller  v.  Aram,  133. 


Miller  v.  Ash,  443,  444. 

Miller  v.  Blackburn,  129. 

Miller  v.  Brown,  83. 

Miller  v.  Craig,  538. 

Miller  v.  Davis,  324. 

Miller  v.  Finley,  555. 

Miller  v.  Goddard,  604. 

Miller  v.  Harris,  398. 

Miller  v.  Kelsey,  458. 

Miller  v.  Keown,  132. 

Miller  v.  Meche,  335. 

Miller  v.  Miller,  67,  68,  116,  141,  245, 
246,  250,  252,  288,  301,  302,  303, 304, 
314,  353,  389. 

Miller  v.  Newton,  188. 

Miller  v.  Pearce,  114. 

Miller  v.  Pennington,  301.. 

Miller  v.  Railway  Co.,  630. 

Miller  v.  St.  Louis  &  S.  F.  R.  Co., 
490. 

Miller  v.  Sanders,  211. 

Miller  v.  Shackleford,  141. 

Miller  v.  Simonds,  389. 

Miller  v.  Sims,  503. 

Miller  v.  Smith,  485,  512. 

Miller  v.  State,  91,  92,  464. 

Miller  v.  Sweitzer,  98. 

Miller  v.  Voss,  188. 

Miller  v.  Wetherby,  202,  208. 

Miller's  Estate,  In  re,  137,  434. 

Miller  &  Lux,  Inc.,  v.  Industrial  Acci- 
dent Commission,  637,  639. 

Millis  v.  Thayer,  392. 

Mills  v.  Graham,  524. 

Mills  v.  State,  464.  ' 

Millsaps  v.  Estes,  476,  510. 

Milne  v.  Kane,  154. 

Milner  v.  Harewood,  425. 

Milroy  v.  Lord,  231. 

Milton  v.  Setze,  161. 

Mims  v.  Mims,  248. 

Miner  v.  Miner,  349,  351. 

Mines  v.  Phee,  217,  225. 

Mink  v.  State,  300. 

Minnehaha  County  v.  Boyce,  536. 

Minnesota  Loan  &  Trust  Co.  v.  Beebe, 
406. 

Minock  v.  Shortridge,  476,  503,  515. 

Minors  Long,  In  re,  452. 

Minotto  v.  Bradley,  566. 

Minter  v.  Clark,  455,  457. 

Minvllle,  Succession  of,  31,  56. 

Mlsselwitz,  In  re,  534. 

Missio  v.  Williams,   103. 

Mississippi  Cent.  R.  Co.  v.  Hardy,  616. 

Missouri,  K.  &  T.  R.  Co.  v.  Hagan,  608. 

Missouri,  K.  &  T.  R.  Co.  v.  Hendricks, 
622,  631. 


CASES  CITED 
[The  figures  refer  to  pages] 


711 


Missouri,  K.  &  T.  R.  Co.  v.  Hudson, 

617. 
Missouri,  K.  &  T.  R.  Co.  v.  Wise,  624, 

625. 

Missouri   Pac.   R.  Co.  v.  Behee,   601. 
Missouri  Pac.  R.  Co.  v.  Lasca,  386,  430. 
Missouri  Pac.  R.  Co.  v.  Palmer,  325. 
Mitchell,  Ex  parte,  329. 
Mitchell,  Case  of,  490. 
Mitchell  v.  Crassweller,  648. 
Mitchell  v.  Kingman,  537,  538. 
Mitchell  v.  Mitchell,  5,  24,  25,  58,  71. 
Mitchell  v.  Otey,  213. 
Mitchell  v.  Penny,  444. 
Mitchell  v.  Robinson,  629. 
Mitchell  v.  Spaulding,  469. 
Mitchell  v.  Swanwood  Coal  Co.,  638. 
Mitchell  v.  Toale,  586. 
Mitchell  v.  Treanor,  174. 
Mitchell's    Distributees    v.    Mitchell's 

Adm'r,  391. 

Mitchinson  v.  Hewson,  97,  184. 
Mitford  v.  Mitford,  135. 
Mittelstadt  v.  Kelly,  567. 
Mixer  v.  Sibley,  567. 
Mizen  v.  Pick,  178. 
Moberg  v.  Scott,  113. 
Mobile  &  M.  R.  Co.  v.  Clanton,  602. 
Moch  v.  Superior  Court,  463. 
Mock  v.  Chancy,  42. 
Mockey  v.  Grey,  468. 
Modisett  v.  McPike,  113,  115,  118, 
Mohr  v.  Manierre,  439. 
Mohr  v.  Porter,  439,  440. 
Mohr  v.  Tulip,  440,  543. 
Mohry  v.  Hoffman,  371. 
Moirv.  Moir,  117. 
Moley  v.  Brine,  476. 
Moller  v.  Sommer,  44,  53. 
Molony  v.  Kennedy,  129,  187. 
Molony  v.  Molony,  89. 
Molton  v.  Comroux,  541,  542. 
Monaghan  v.  School  Dist,  356. 
Monahan  v.  Monahan,  127. 
Monarch  Mining  &  Development  Co.  v. 

De  Voe,  620. 
Moncrief  v.  Ely,  306. 
Mondou  v.  New  York,  N.  H.  &  H.  R. 

Co.,  635. 

Monell  v.  Monell,  455. 
Monget  v.  Walker,  429. 
Monk  v.  Hurlburt,  326. 
Monnin  v.  Beroujon,  448. 
Monroe  v.  Proctor,  597. 
Monsen  v.  Crane,  607. 
Montacute  v.  Maxwell,  226.  228. 
Montgomery  v.  Gordon,  467. 
Montgomery  v.  Montgomery,  12. 
Montgomery  v.  Smith,  405,  454. 


Montmorency  v.  Montmorency,  291. 
Moody  v.   Hagan,   564,   565. 
Moody  v.  Manufacturing  Co.,  628. 
Moody  v.  Southern  Pac.  Co.,  Ill,  150, 

151. 

Mooers  v.  White,  564. 
Moon  v.  Towers,  335. 
Moon's  Adm'r  v.  Railroad  Co.,  626,  630, 

632. 

Moor  v.  Moor,  154. 
Moore,  In  re,  305,  399,  434,  444,  446. 
Moore  v.  Bullock,  110. 
Moore  v.  Cornell,  203,   208. 
Moore  v.  Crandall,  126,  151,  200. 
Moore  v.  Dubblin   Cotton  Mills,  612, 

616. 

Moore  v.  Eastman,  526. 
Moore  v.  Flack,  303,  309. 
Moore  v.  Graves,  467. 
Moore  v.  Hegeman,  67,  72. 
Moore  v.  Heineke,  49. 
Moore  v.  Hershey,  544. 
Moore  v.  Home,  547. 
Moore  v.  King  Mfg.  Co.,  629. 
Moore  v.  Lehigh  Valley  R.  Co.,  640. 
Moore  v.  McEwen,  470. 
Moore  v.  Moore,  9,  10,  137. 
Moore  y.  Nah-con-be,  55. 
Moore  v.  Railroad  Co.,  620. 
Moore  v.  St.  Louis  Transit  Co.,  622. 
Moore  v.  Sanborne,  653. 
Moore  v.  Saxton,  305,  308. 
Moore  v.  Shields,  430. 
Moore  v.  Stancel,  152. 
Moore  v.  State,  328. 
Moore  v.  Whitaker,  61. 
Moorsom  v.  Moorsom,  274. 
Moot  v.  Moot,  3,  13. 
Morain  v.  Devlin,  546. 
Moran,  In  re,  312. 
Moran  v.  Dawes,  643. 
Moran  v.  Mulligan,  618. 
Moran  v.  Stewart,  315,  316. 
Mordecai  v.  Pearl,  512. 
Morehouse  v.  Cooke,  404. 
Morey  v.  Webb,  646. 
Morgan  v.  Bank,  128. 
Morgan  v.  Bridge  Co.,  521. 
Morgan  v.  Johnson,  419. 
Morgan  v.  Lones,  154. 
Morgan  v.  Martin,  118. 
Morgan  v.   Morgan,   21. 
Morgan  v.   Shelton,   5S7. 
Morgan  v.  Smith,  622. 
Morgan  v.  State,  27. 
Morgenroth  v.  Spencer,  176. 
Morin  v.  Morin,  351. 
Moritz  v.  Garnhart,  376,  385. 
Morning  v.  Long,  122, 


712 


CASES  CITED 
[The  figures  refer  to  pages] 


Morovick  v.  Inland  Steel  Co.,  628. 

Morrell  v.  Morrell,  ^Sti. 

Morrill  v.  Aden,   500. 

Merrill  v.  Morrill,  351. 

.Morrill  v.  Palmer,  38,  4L 

Morris  v.  Clay,  538. 

Morris  v.  Davis,  299. 

Morris  v.  Hastings,  153,  154, 

Morris   v.    Martin,   177. 

Morris  v.  Morris,  253,  260. 

Morris  v.  Waring,  199. 

Morris  v.  Warwick,  115. 

Morris  v.  Z.  T.  Briggs  Photographic 

Supply  Co.,  585. 
Morris'  Estate,  In  re,  52, 
Morrison,  In  re,  245. 
Morrison  v.  Clark,  111. 
Morrison  v.  Holt,  180. 
Morrison  v.  Kinstra,  420,  423,  438. 
Morrison  v.   Morrison,  259,  263,  273, 

274,  282,  283,  286. 
Morrison  v.  San  Pedro,  L.  A.  &  S.  L. 

R.  Co.,  612. 

Morrison  v.  Sessions'  Estate,  310. 
Morrow  v.  Whitesides'  Ex'r,  129,  183, 

184. 

Morse  v.  Crawford,  546. 
Morse  v.  Ely,  512,  513. 
Morse  v.  Scott,  553. 
Morse  v.  Welton,  334,  359,  363,  387. 
Morse  v.  Wheeler,  504,  505. 
Mortimer  v.  Mortimer,  239. 
Mortimore  v.  Wright,  322,  481. 
Morton  v.  Detroit,  B.  C.  &  A.  R.  Co., 

616. 

Morton  v.  State,  91,  92. 
Morton  v.  Steward,  474,  482. 
Moses  v.  Fogartie,  175,  179. 
Moses  v.  Stevens,  517. 
Mosher  v.  Mosher,  253,  278. 
Mosley  v.  Stratton,  169. 
Moss  v.  Mosley,  617. 
Moss  v.  Moss,  12. 
Moss  v.  Pacific  Railroad,  611, 
Mosteller,  Appeal  of,  390. 
Mott  v.  Mott,  543. 
Motte  v.  Feltgen,  515. 
Moulton  v.  Moulton,  256. 
Mound  City  Paint  &  Color  Co.  v.  Con- 
Ion,  646. 

Mount  v.  Tremont  Lumber  Co.,  315. 
Mountain    Timber    Co.    v.    State    of 

Washington,  636. 
Mountfort,  Ex  parte,  404,  410. 
Mouser  v.  Nunn,  451. 
Mowbry  v.  Mowbry,  325,  33L 
Mowry  v.  Chancy,  111. 
Moyer,  Appeal  of,  133. 
Moyer  v.  Fletcher,  409,  414. 


Moyers  v.  Kinnick,  434. 
Moyler  v.  Moyler,  252,  253. 
Moynihan  v.  Hills  Co.,  626. 
Mueller  v.  Kuhn,  87. 
Mulford  v.  Beveridge,  439. 
Mulhern  v.  McDavitt,  414. 
Mullan  v.  Steamship  Co.,  629. 
Mullen  v.  Little,  639. 
Mullen  v.  Manhattan  R,  Co.,  466. 
Muller  v.  Muller,  262. 
Multer  v.  Knibbs,  116,  117. 
MulvehaU  v.  Millward,  370,  371,  381. 

383. 

Mulvey  v.  State,  90. 
Mumford  v.  Rood,  414,  432. 
Mundell  v.  Coster,  22. 
Munden  v.  Harris,  524,  525. 
Munnerlyn  v.  Munnerlyn,  141. 
Munsey  v.  Goodwin,  357. 
Munson  v.  Washband,  487. 
Murchison  v.  Green,  62,  64. 
Murchison  v.  Murchison,  278. 
Murdock  v.  Murdock,  223,  224,  225. 
Murdy  v.  Skyles,  87. 
Murph  v.  McCullough,  426,  431. 
Murphy,  Ex  parte,  347. 
Murphy,  In  re,  353. 
Murphy  v.  Cady,  457. 
Murphy    v.     Grand     Rapids    Veneer 

Works,  617. 

Murphy  v.  Murphy,  390,  391. 
Murphy  v.  Old  Colony  St.  R.  Co.,  613, 

616. 

Murphy  v.  Ottenheimer,  332. 
Murphy  v.  Railway  Co.,  608. 
Murphy  v.  Superior  Court,  456. 
Murphy  v.  Walker,  434. 
Murray  v.  Feinour,  433. 
Murray  v.  Thompson,  476. 
Murray  v.  Wood,  458. 
Muse  v.  Stern,  651. 
Musgrave  v.  Conover,  439. 
Musgrove  v.  Kornegay,  356. 
Musselman  v.  Galligher,  103. 
Mussey  v.  Pierre,  564. 
Musson  v.   Trigg,  186,  190,  191,  192, 

194,  195. 
Mustard    v.    Wohlford's    Heirs,    474, 

475,  489,  505,  508,  510,  512,  515,  516. 
Mutter  v.  Mutter,  271. 
Mutual  Ben.  Life  Ins.  Co.  v.  Hillyard, 

567,  568. 

Mutual  Life  Ins.  Co.  v.  Hunt,  541. 
Mutual  Life  Ins.  Co.  of  New  York  v. 

Wiswell,  535. 
Myers  v.  Knabe,  542. 
Myers  v.  McGavock,  438,  439,  440. 
Myers  v.  Myers,  273,  33L 
Myers  v.  Wade,  415. 
Mytton  v.  Mytton,  251. 


CASES  CITED 
[The  figures  refer  to  pages] 


713 


N 


Nadan  v.  Lumber  Co.,  610. 

Nadel  v.  Weber  Bros.  Shoe  Co.,  207. 

Nadra  v.  Nadra,  56. 

Nagel  v.  Nagel,  283. 

Nagel  v.  Railroad  Co.,  522. 

Naill  v.  Maurer,  217. 

Nairn  v.  Prowse,  219. 

Naler  v.  Ballew,  146,  148. 

Nance  v.  Nance,  221,  433,  435. 

Napier  v.  Church,  31. 

Nash  v.  Jewett,  528. 

Nash  v.  Nash,  135. 

Nashua  &  L.  R.  Corp.  v.  Paige,  583. 

Nashville  C.  &  St.  L.  Ry.  v.  Kallock, 
628. 

Nashville,  C.  &  St.  L.  R.  Co.  v.  Whe- 
less,  628. 

Nashville  Lumber  Co.  v.  Barefleld, 
430,  440. 

Nashville  &  C.  R.  Co.  v.  Starnes,  651. 

Natchez,  J.  &  C.  R.  Co.  v.  Cook,  376, 
377. 

Nathan  v.  Morgenthau,  172,  175. 

National  Drainage  Co.  v.  Bell,  614. 

National  Enameling  &  Stamping  Co. 
v.  Padgett,  610,  638. 

National  Fire  Proofing  Co.  v.  An- 
drews, 619,  624. 

National  Metal  Edge  Box  Co.  v.  Van- 
derveer,  541. 

National  Surety  Co.  v.  State,  444, 
447. 

Naugle  v.  State,  457. 

Naylor  v.  Field,  202,  203,  208. 

Neal  v.  Bartleson,  407. 

Neal  v.  Gillett,  524. 

Neal  v.  Neal,  388. 

Neal  v.  Northern  Pac.  R.  Co.,  631. 

Neal  v.  State,  340,  342,  343,  530. 

Nebo  Coal  Co.  v.  Barnett,  622. 

Needham  v.  Bremmer,  177. 

Needles  v.  Needles,  131,  132,  133. 

Neel's  Ex'r  v.  Noland's  Heirs,  134. 

Neely's  Appeal,  225. 

Neff  v.   Landis,  527. 

Neff  v.  Neff,  266. 

Nehring  v.  Nehring,  68. 

Neil,  Appeal  of,  308. 

Neil  v.  Idaho  &  W.  N.  R.  Co.,  634. 

Neill  v.  Neill,  457. 

Nekoosa-Edwards  Paper  Co.  v.  Indus- 
trial Commission,  642. 

Nelichka  v.  Esterly,  604. 

Nelson,  In  re,  454,  535, 

Nelson  v.  Brown,  2. 

Nelson  v.  Carlson,  52. 

Nelson  v.  Cowling,  443. 


Nelson  v.  Green,  403. 

Nelson  v.  Jones,  295.     . 

Nelson  v.  Nelson,  202. 

Nelson  v.  State,  49. 

Nesmith  v.  Platt,  219,  224,  225. 

Netherland-American  Steam  Nav.  Co. 

v.  Hollander,  372,  374. 
Neudecker  v.  Leister,  128. 
Neves  v.  Scott,  220. 
Neville  v.  Cheshire,  186,  195. 
Neville  v.  Chicago  &  A.  R.  Co.,  649. 
New  v.  New,  391. 
New  v.   Southern  R.  Co.,  369. 
Newbery  v.  Wilkinson,  457. 
New  Castle  Bridge  Co.  v.  Steele,  608. 
Newell  v.  Fisher,  555. 
New  England  Telephone  &  Telegraph 

Co.  v.  Butler,  625. 
New  Hampshire  Mut.  Fire  Ins.  Co.  v. 

Noyes,  487. 
New  Jersey  Title  Guaranty  &  Trust 

Co.  v.  Parker,  215. 

Newkirk  v.  New  York  &  H.  R.  Co.,  587. 
Newlauds  v.  Paynter,  129,  187. 
Newlin's  Estate,  In  re,  57. 
Newman  v.  Kimbrough,  69. 
Newman  v.  Newman,  150, 155. 
Newman  v.  Reagan,  605. 
Newman's  Case,  In  re,  176,  178. 
New  Orleans,  J.  &  G.  N.  R.  Co.  v.  Har- 
rison, 623,  649,  650. 
New  Orleans,   St.  L.  &  C.  R.  Co.  v. 

Burke,  650. 

Newport  v.  Cook,  330,  410,  415. 
Newport  News  &  M.  Val.  Co.  v.  Dent- 

zel's  Adm'r,  630. 
Newsome  v.  Newsome,  278. 
Newton  v.  Cooper,  356. 
Newton  v.  Evers,  544. 
Newton  v.  Hatter,  108. 
Newton  v.  New  York  Cent.  &  H.  R.  R. 

Co.,  606,  608,  616. 
New  York  Building  Loan  Banking  Co. 

v.  Fisher,  466,  490. 
New  York  Building  Loan  &  Banking 

Co.  v.  Fisher,  466. 

New  York  Cent.  R.  Co.  v.  White,  636. 
New  York,  C.  &  St.  L.  R.  Co.  v.  Schaf- 

fer,  601. 
New   York  Life  Ins.   Co.   v.  Thomas, 

581. 

Niagra  Fire  Ins.  Co.  v.  Whittaker,  583. 
Niccol's  Estate,  In  re,  153. 
Nichols   v.    Bryden,   438. 
Nichols  v.  Nichols,  248. 
Nicholson,  Appeal  of,  454. 
Nicholson  v.  Nicholson,  14. 
Nicholson  y.  Patchin,  577. " 


714 


CASES  CITED 

[The  figures  refer  to  pages] 


Nicholson  v.  Spencer,  411,  484,  485. 
Nicholson   v.    Wilborn,   451,   470,   477, 

486. 

Nickals,  In  re,  442. 
Nickerson,  Case  of,  641,  642. 
Nickerson  v.  Harriman,  377. 
Nickerson  v.  Hoover,  316. 
Nickerson  v.  Nickerson,  105. 
Nickleson  v.  Stryker,  383. 
Nicrosi  v.  Phillippi,  566. 
Nightingale   v.   Withington,  356,  35&, 

362,  476,  496. 
Niles  v.  Hall,  196. 
Nil  son  v.  Morse,  586. 
Nine  v.  Starr,  306- 
Nixon  v.  Lead  Co.,  626. 
Nixon  v.  Ludham,  112. 
Nixon  v.  Spencer,  362. 
N.  K.  Fairbanks  Co.  v.  Industrial  Com- 
mission, 640. 
Noel  v.  Ewing,  2,  3. 
Noel  v.  Fitzpatrick,  234. 
Noel  v.  O'Neill,  172. 
Noel  v.  Quincy,  O.  &  K.  C.  R.  Co.,  607. 
Nogees  v.  Nogees,  278. 
Noice  v.  Brown,  385. 
Nolasco  v.  Lurty,  308. 
Nolin  v.  Pearson,  119. 
Nones  v.  Homer,  579. 
Nonnemacher  v.  Nonnemacher,  19. 
Norcross  v.  Norcross,  41,  49. 
Nord  Deutscher  Ins.  Co.  of  Hamburg, 

Germany,  v.  John  L.  Dudley,  Jr.,  Co., 

567. 

Nordholt  v.  Nordholt,  478. 
Norfolk  v.  S.  K,  Co.  v.  King,  617,  634. 
Norfolk  &  W.  R.  Co.  v.  Gesswine,  618. 
Norfolk  &  W.  R.  Co.  v.  Hoover,  628. 
Norman  v.  Norman,  40,  71. 
Norman  v.  Southern  R.  Co.,  611,  614. 
Norman  v.   Virginia-Pocahontas  Coal 

Co.,  615. 

Normile  v.  Wheeling  Traction  Co.,  109. 
Norris  v.  Beyea,  197. 
Norris  v.  Corkill,  103. 
Norris  v.  Harris,  398. 
Norris  v.  Kohler,  651. 
Norris  v.  I/antz,  157. 
Norris  v.  Vance,  491,  504. 
North  American  Coal  &  Coke  Co.  v. 

O'Neal,  515. 
North  Chicago  City  R,  Co.  v.  Gastka, 

650. 

Northern  v.  Scruggs,  466. 
Northern  Alabama  R.  Co.  v.  Harper, 

634. 

Northern  Cent.  R.  Co.  v.  Husson,  608. 
Northern  Pac.  R.  Co.  v.  Herbert,  616, 

626,   627S 


Northfield  v.  Plymouth,  38,  41. 

North  Pac.  S.  S.  Co.  v.  Industrial  Ac- 
cident Commission,  641. 

North  Platte  Milling  &  Elevator  Co.  v. 
Price,  228. 

Northwall  Co.  v.  Osgood,  205. 

Northwestern  Mutual  Fire  Ins.  Co.  v. 
Blakenship,  541. 

Northwestern  R.  Co.  v.  McMichael, 
489. 

Norton  v.  Cowell,  584. 

Norton  v.  Fazan,  177. 

Norton  v.  Norton,  29. 

Norton  v.  Seton,  29. 

Norton  v.  Strong,  451. 

Norton  v.  Warner,  121. 

Norwood  v.  Francis,  163,  164. 

Nowell  v.  Wright,  656. 

Noxon  v.  Remington,  118. 

Noyes  v.  Noyes,  275. 

Nuding  v.  Urich,  126,  127,  200. 

Nugent  v.  Brooklyn  Heights  R.  Co., 
521. 

Nugent  v.  Vetzera,  442. 

Nullmeyer  v.  Nullmeyer,  280. 

Nunn  v.  Robertson,  407,  469, 

Nurse  v.  Craig,  178,  217. 

Nyman  v.   Lynde,  367. 


Oakes  v.  Oakes,  152. 

Oakes  v.  West,  199. 

Oatman  v.  Watrous,  175. 

Oberlin  v.  Upson,  379. 

Obermayer  v.  Greenleaf,  217. 

Oborn  v.  State,  549,  551. 

O'Brien  v.  Galley- Stockton  Shoe  Co., 

85,  327. 

O'Brien  v.  McSherry,  198. 
O'Brien  v.  Rideout,  634. 
Ochoa  v.  Edwards,  152. 
O'Connell's  Guardianship,  In  re,  398. 
O'Daily  v.  Morris,  205. 
O'Dea  v.  O'Dea,  290. 
Odenbreit  v.  Utheim,  315,  319. 
Odeneal  v.  Henry,  593,  597. 
Odom  v.  Bush,  583,  584. 
Odom  v.  Odom,  278,  281. 
Odom  v.  Riddick,  546. 
O'Donohue  v.  Smith,  488,  492. 
Oesau  v.  Oesan's  Estate,  216. 
O'Farrell  v.  O'Farrell,  152. 
O'Farrell  v.  Vickrage,  210. 
Officer  v.  Swindlehurst,  389. 
Offleld  v.  Davis,  38,  41. 
Offley  v.  Clay,  125. 
Ogden  v.  Ogden,  68,  226. 
Ogden  v.  Prentice,  171. 
Ogden  v.  State,  464. 


CASES  CITED 
[The  figures  refer  to  pages] 


715 


Ogllvie  v.   Ogilvie,  258. 

O'Hara  v.  McConnell,  470. 

Ohchoa  v.  Edwards,  154. 

Ohio  Valley  Tie  Co.  v.  Hayes,  468. 

Ohms  v.  Woodward,  403. 

Ollschlager's  Estate  v.  Widmer,  62,  68. 

Oinson  v.  Heritage,  176,  177. 

O'Kane  v.  O'Kane,  268. 

O'Keefe  v.  Casey,  452. 

O'Keefe  v.  Thorn,  617. 

Oklahoma   Land   Co.   v.    Thomas,   55. 

Olcott  v.  Maclean,  562. 

Oldfield  v.  New  York  &  H.  R.  Co.,  377. 

O'Leary  v.  Brooks  Elevator  Co.,  524, 

525. 

Oliver,  Succession  of,  405. 
Oliver  v.  Oliver,  251,  253,  351. 
Oliver  v.  Wright,  146,  148. 
Olmstead  v.  Bach,  598,  599. 
Olmstead  v.  Beale,  604. 
Olmsted  v.  Olmsted,  290,  301. 
Olson  v.  Great  Northern  R.  Co.,  609. 
Olson  v.  Olson,  254. 
Olson  v.  Railway  Co.,  628. 
Olson  v.  Seldovia  Salmon  Co.,  620. 
Olson  v.  Springer,  155. 
Omaha  Water  Co.  v.  Schmal,  313. 
O'Malley  v.  O'Malley,  48,  49,  50. 
Oneida  County  Sav.  Bank  v.  Saunders, 

515. 

O'Neil  v.  Cardina,  86. 
O'Neil  v.  Karr,  612. 
O'Neil's  Guardian,  In  re,  453. 
Oneonta  Grocery  Co.  v.  Preston,  509. 
Ongaro  v.  Twohy,  624. 
Oolitic  Stone  Co.  v.  Ridge,  619. 
Orchard  v.  Wright-Dalton-Bell-Anchor 

Store  Co.,  502. 
Ordinary  v.  Dean,  430. 
Ordinary  v.  Heishon,  458. 
Ordway  v.  Bright,  187. 
Ordway  v.  Phelps,  451. 
Ormsby  v.  Rhoades,  577. 
Oropa,    The,    567. 
Orr  v.  Brown,  576. 
Orr  v.  Hodgson,  564. 
Orr   v.  Wahlfeld  Mfg.  Co.,  354. 
Orr  &  Rolfe  Co.  v.  Merrill,  160. 
Orthwein  v.  Thomas,  296. 
Ortley  v.  Ross,  55. 
Ortwein  v.  Com.,  549. 
Osborn  v.  Allen,  356. 
Osborn  v.  Cooper,  234. 
Osborn  v.  Gillett,  377. 
Osborn  v.  Nelson,  158. 
Osborne  v.  McDonald,  308. 
Osborne  v.  Morgan,  656. 
Osborne  v.  Railroad  Co.,  623j 
Osborne  v.  .Ramsey,  49. 


Osburn  v.  Throckmorton,  234. 

Ostrander  v.  Quin,  466. 

Oswald  v.  Jones,  211. 

Otis,  In  re,  436. 

Otis  v.  Hall,  414. 

Ottaway  v.  Hamilton,  180. 

Otte  v.  Becton,  331. 

Otto  v.  Long,  150. 

Otto  v.  Matthie,  87. 

Otto  v.  Schlapkahl,  396. 

Otto  F.  Stifel's  Union  Brewing  Co.  v. 
Saxy,  128,  147,  148. 

Otway  v.  Otway,  282,  283. 

Outcalt  v.  Van  Winkle,  135. 

Outlaw  v.  Outlaw,  252. 

Overland  Cotton  Mill  Co.  v.  People 
462. 

Overseers  of  Poor  of  Town  of  New- 
bury  v.  Overseers  of  Poor  of  Town 
of  Brunswick,  38,  44. 

Overseers  of  Washington  Tp.  v.  Over- 
seers of  Beaver  Tp.,  393. 

Overton  v.  Banister,  528. 

Overton  v.  Beavers,  411,  450. 

Overton  v.  Overton,  309. 

Overton  v.  State,  93. 

Ovitt  v.  Smith,  35. 

Owen  v.  Coffey,  24,  25,  58. 

Owen  v.  Frink,  587. 

Owen  v.  Long,  475,  504. 

Owen  v.  Peebles,  431. 

Owen  v.  White,  324,  333. 

Owens  v.  Dickenson,  190. 

Owens  v.  Gunther,  469. 

Owens  v.  Johnson,  190,  191,  192. 

Owens  v.  Pearce,  415. 

Owens  v.  Snodgrass,  99. 

O.  W.  Schultz  Lumber  Co.  v.  Robin- 
son, 210. 

Oxford  v.  Peter,  649. 

Ozogar  v.  Pierce,  Butler  &  Pierce  Mfg. 
Co.,  625. 

O.  &  W.  Thum  Co.  v.  Tloczvnski,  603. 


P.  v.  S.,  30. 

Pace  v.  Appanoose  County,  640. 

Pace  v.  Cawood,  491. 

Pack  v.  Mayor,    652. 

Paddock  v.  Wells,  27. 

Pagan   v.   Southern  R.  Co.,  607,   608, 

609,  621,  625,  630. 
Page  v.  Hodgdon,  404. 
Page  v.  Morse,  475. 
Page  v.  Page,  278. 
Page  v.  Trufant,  240. 
Pain  v.  Pain,  33. 
Paine  v.  Hill,  586. 


716 


CASES  CITED 

[The  figures  refer  to  pages] 


Pair  v.  Pair,  309. 

Palet  v.  Aldecoa   Co.,  393. 

Palllser  v.  Gurney,  162. 

Palm  v.  Ivorson,  335. 

Palmer  v.  Abrahams,  438. 

Palmer  v.  Baum,  370,  375,  383. 

Palmer  v.  Cheseboro,  436. 

Palmer  v.  Crook,  115. 

Palmer  v.  Miller,  489,  506,  515. 

Palmer  v.  Oakley,  405. 

Palmer  v.  Palmer,  248,  253,  260. 

Palmer  v.  Wakefleld,  96. 

Palmer  Window  Glass  Co.,  In  re,  564. 

Pancoast  v.  Burnell,  103. 

Pancoast  v.  Pancoast,  150. 

Pannill's  Adm'r  v.  Galloway's  Commit- 
tee, 407. 

Pantzar  v.  Mining  Co.,  629. 

Paramour  v.  Yardley,  502. 

Parent  v.  Callerand,  202. 

Park  v.  Barren,  35. 

Park  Bros.  Co.  v.  Bushnell,  590. 

Parker,  Appeal  of,  28,  66. 

Parker  v.  Brooke,  186. 

Parker  v.  Davis,  543. 

Parker  v.  De  Bernard!,  44,  51,  53. 

Parker  v.  Ibbetson,  583. 

Parker  v.  Joslin  Dry  Goods  Co.,  84. 

Parker  v.  Kane,  205. 

Parker  v.  Lechmere,  133. 

Parker  v.  Lewis,  400,  404. 

Parker  v.  Meek,  370,  378,  380,  383, 
384. 

Parker  v.  Monteith,  382. 

Parker  v.  Newman,  119. 

Parker  v.  Parker,  18,  19,  258. 

Parker  v.  Ricks,  466. 

Parker  v.  Steed,  184. 

Parker  v.  Way,  300. 

Parker  v.  Wiggins,  345,  346,  353. 

Parker  v.  Wilson,  335,  457,  575. 

Parkes  v.  Seasongood,  652. 

Parkhurst  v.  Johnson,  613. 

Parmelee  v.  Smith,  387. 

Parnell  v.  Parnell,  19. 

Parrish  v.  Treadway,  475,  489,  495, 
507. 

Parry  Mfg.  Co.  v.  Eaton,  624. 

Parsee  Merchant,  Case  of,  536. 

Parsley's  Adm'r  v.  Martin,  421,  422. 

Parsons  v.  Keys,  481. 

Parsons  v.  Parsons,  135,  136,  137,  139, 
313. 

Parsons  v.  State,  550. 

Parsons  v.  Teller,  502,  504. 

Parsons  v.  Winchell,  656. 

Parton  v.  Hervey,  21,  22,  23,  38,  39. 

Partridge  v.  Arnold,  359,  365. 

Partridge  y.  Stocker,  162,  163. 


Paskewie  v.  East,  387. 

Paslick  v.  Shay,  407. 

Passenger  R.  Co.  v.  Young,  649,  650. 

Patelski  v.  Snyder,  112. 

Pater  v.  Superior  Steel  Co.,  636. 

Patterson  v.  Booth,  423. 

Patterson  v.  Gage,  587. 

Patterson  v.  Gaines,  34,  37,  56,  57, 
296. 

Patterson  v.  Kasper,  493,  527. 

Patterson  v.  Kates,  648. 

Patterson  v.  Melchior,  430. 

Patterson  v.  Nutter,  340,  342. 

Patterson  v.  Patterson,  199,  265,  348. 

Patterson   v.   Pullman,  469. 

Patterson  v.  Thompson,  383. 

Patterson's  Estate,  In  re,  51,  53. 

Pattison  v.  Gulf  Bag  Co.,  367. 

Pattison  v.  Jones,  601. 

Patton  v.  Philadelphia  &  New  Or- 
leans, 44. 

Patton  v.  Thompson,  '413. 

Patton's  Ex'r  v.  Smith,  200. 

Paty  v.  Smith,  438. 

Paul  v.  Davis,  315. 

Paul  v.  Frazier,  379. 

Paul  v.  Hummel,  335,  337. 

Paul  v.  Smith,  487. 

Paulin  v.  Howser,  335. 

Pavlovski  v.  Thornton,  109. 

Paxtin  v.  Paxton,  325. 

Payne  v.  Payne,  205,  264,  271. 

Payne  v.  Stone,  435. 

Payne  v.  Williams,  116,  117, 

Peacock  v.  Coltrane,  597. 

Peacock  v.  Cummings,  583. 

Peacock's  Trusts,  In  re,  187. 

Peak  v.  Lemon,  103. 

Pearce  v.  Pearce,  53. 

Pearll  v.  Pearll  Advertising  Co.,  127. 

Pearman  v.  Pearman,  80. 

Pearsall  v.  New  York  Cent  &  H.  R, 
Co.,  612. 

Pearson,  Case  of,  559. 

Pearson  v.  Cox,  654. 

Pearson  v.  Darrington,  175,  178,  179, 
180. 

Pearson  v.  Pearson,  81,  83. 

Pearson  v.  White  &  Cochran,  478, 
486. 

Pease  v.  Pease,  283,  284. 

Pease  v.  Roberts,  454. 

Peaslee  v.  Peaslee,  224. 

Peaslee  v.  Robbins,  538. 

Pecararo  v.  Pecararo,  507. 

Peck  v.  Braman,  456. 

Peck  v.  Peck,  45,  48,  49,  52,  53,  216. 

Pecos  &  N.  T.  R,  Co.  v.  Blasengame, 
370. 


CASES  CITED 
[The  figures  refer  to  pages] 


717 


Pedan  v.  Robb's  Adm'r,  416,  417. 

Pederson  v.  Christofferson,  303,  309. 

Pedrick  v.  Kuemmell,  234. 

Pedro  v.  Pedro,  494. 

Peel  v.  McCarthy,  451. 

Peerless  Pacific  Go.  v.  Burckhard,  72. 

Peese  v.  Gellerman,  345. 

Pegg  v.  Pegg,  42. 

Pellage  v.  Pellage,  390. 

Pelzer  v.  Campbell,  193. 

Pendrell  v.  Pendrell,  296,  298. 

Penfield  v.  Savage,  411. 

Penn  v.  Penn,  351. 

Penn  v.  Whitehead,  162,  188,  360. 

Pennegar  v.  State,  69,  71,  72. 

Pennington  v.  L'Hommedieu,  401. 

Pennsylvania  v.  Ravenel,  88. 

Pennsylvania  Co.  v.  Dolan,  575,  579. 

Pennsylvania  Co.  v.  Lilly,  377. 

Pennsylvania  Co.  v.  Lynch,  607. 

Pennsylvania  Co.  v.  Purvis,  510. 

Pennsylvania  R.  Co.  v.  Goodman,  111, 

112. 
Pennsylvania  R.  Co.  v.  Kartell,  611, 

613,   629. 

Penrose  v.  Curren,  527. 
People  v.  Adams,  45,  49. 
People  v.  Baker,  290. 
People  v.  Booth,  32. 
People  v.  Brooks,  450. 
People  v.  Buck,  453. 
People  v.  Byron,  451. 
People  v.  Calder,  62. 
People  v.   Case,   2,   5,   242,   276,   297, 

300. 

People  v.  Chamberlain,  306,  328. 
People  v.  Chapman,  94,  248. 
People  v.  Chicago,  574. 
People  v.  Conklin,  569. 
People  v.  Connell,  329. 
People  v.  Dawell,  33,  288. 
People  v.  Domenico,  530. 
People  v.  Eggleston,  558. 
People  v.  Ewer,  462. 
People  v.  Finley,  550,  551. 
People  v.  Fitzgerald,  329. 
People  v.  Forester,  329. 
People  v.  Foy,  551. 
People  v.  Garbutt,  557. 
People  v.  Ham,  24,  25,  39,  58. 
People  v.  Hammill,  558. 
People  v.  Harty,  307. 
People  v.  Insurance  Co.,  594, 
People  v.  Koerner,  558. 
People  v.  Landt,  306. 
People  v.  Lochner,  575. 
People  v.  Loomis,  462. 
People  v.  McLeod,  562. 
.People  v.  Mercein,  240,  352. 


People  v.  Miller,  90. 

People  v.  Moores,  478,  479,  481. 

People  v.  Mortimer,  551. 

People  v.  Mullin,  478. 

People  v.  Olmstead,  343,  345. 

People  v.  Overseers  of  Poor  of  Town 

of  Ontario,  300. 
People  v.  Pierson,  462. 
People  v.  Pine,  550. 
People  v.  Porter,  347.. 
People  v.  Randolph,  531. 
People  v.  Rogers,  557,  559. 
People  v.  Schlott,  329. 
People  v.  Schmidt,  551. 
People  v.  Schuyler,  93. 
People  v.  Seelye,  457. 
People  v.  Shaw,  51. 
People  v.  Siems,  68,  70. 
People  v.  Sinclair,  345,  349. 
People  v.  Slack,  24,  25,  57. 
People  v.  Smith,  574. 
People  v.  Souleotes,  24. 
People  v.  Spencer,  46,  48. 
People  v.  Steere,  70. 
People  v.  Sullivan,  313. 
People  v.  Taylor,  462,  550. 
People  v.  Todd,  531. 
People  v.  Townsend,  529. 
People  v.  Trank,  462. 
People  v.  Turja,  464. 
People  v.  Walker,  557,  559. 
People  v.  Wethel,  311. 
People  v.   Wilcox,  344,  400,  404,  407, 

409. 

People  v.  Willard,  550. 
People    v.   Williams,  575. 
People  v.  Winnters,  80. 
People  v.  Woodby,  36. 
People  v.  Woodley,  72. 
People  v.  Woodson,  296,  297. 
People  v.  Wright,  91,  92. 
People  ex  rel.  Beaudoin  v.  Beaudoin, 

345. 

People  ex  rel,  Catlin  v.  Catlin,  291. 
People  ex  rel.   Levine  v.   Shea,   243, 

People  ex  rel.  New  York  Juvenile 
Asylum  v.  Board  of  Sup'rs  of  Nas- 
sau County,  464. 

People  ex  rel.  Sinclair  v.  Sinclair, 
348. 

People  ex  rel.  Snell  v.  Snell,  345. 

People's  Home  Telephone  Co.  v.  Cock- 
rum,  111. 

People's  Trust  Co.  v.  Merrill,  161, 
207. 

Feoria,  D.  &  B.  R.  Co.  v.  Rice,  632. 

Pepin's  Estate,  In  re,  316. 

Pepper  v.  Stone,  418,  451. 


718 


CASES  CITED 
[The  figures  refer  to  pages] 


Pepper's  Estate,  In  re,  153. 

Percy  v.  Cockrill,  197. 

Peretti  v.  Peretti,  260. 

Perine  v.  Grand  Lodge,  429. 

Perkins  v.   Bletheu,  75,  160. 

Perkins  v.  Dyer,  441. 

Perkins  v.  Elliott,  212. 

Perkins  v.  Finnegan,  454. 

Perkins  v.  Middleton,  502. 

Perkins  v.  Morgan,  86,  180. 

Perkins  v.  Perkins,  290. 

Perkins  v.  U.  S.,  549,  558. 

Perrin  v.  Wilson,  486. 

Perry  v.  Blumenthal,  126,  200. 

Perry  v.  Carmichael,  386.  396. 

Perry  v.  Michigan  Alkali  Co.,  619. 

Perry  v.  Pearson,  538. 

Ferry  v.  Perry,  58,  59,  60,  80. 

Perry  v.  Tozer,  615. 

Perryclear  v.  Jacobs,  136. 

Person  v.  Chase,  518. 

Pertreis  v.  Tondear,  59. 

Peru  Basket  Co.  v.  Kuntz.  642. 

Peschel  v.  Railway  Co.,  629. 

Peter  Adams  Paper  Co.  v.  Cassard, 
205. 

Peters  v.  Fleming,  484.  485, 

Peters  v.  Peters,  105.  106. 

Peters  v.  Scoble,  330. 

Peterson  v.  Drew,  596. 

Peterson  v.  Haffner.  524. 

Peterson  v.  Laik,  506. 

Peterson  v.  Mining  Co.,  629. 

Peterson  v.  Widule,  30. 

Peterson's  Estate,  In  re,  314. 

Petit  v.  Petit,  70. 

Petras  v.  Petras,  67. 

Petre  v.  Petre,  489. 

Petrie  v.  Williams,  512,  514. 

Pettee  v.  Pettee,  275. 

Pettis  v.  Pettis,  290,  291. 

Pettit  v.  Atlantic  Coast  Line  R,  Co., 
462. 

Pettit  v.  Pettit,  32,  34.  240. 

Pettus  v.  Dawson,  307. 

Pettus  v.  Sutton,  431. 

Petty  v.  Anderson,  163. 

Petty  v.  Roberts,  492.  504. 

Peupnet  v.  Phelps,  59. 

Pevehouse  v.  Adams,  389,  419. 

Pfannebecker  v.  Pfannebecker,  259. 

Phelin  v.  Kenderdine,  382. 

Phelps  v.  Phelps,  135,  280. 

Phelps  v.  State,  329. 

Phelps  v.  Worcester,  487. 

Philadelphia,  B.  &  W.  R,  Co.  v.  Schu- 
bert, 635. 

Philadelphia  Trust,  Safe  &  Deposit 
Ins.  Co.  v.  Allison,  556. 


Philadelphia,  W.  &  B.  R,  Co.  v.  Lar- 

kin,  650. 
Philadelphia  &  Rending  Coal  &  Iron 

Co.  v.  Oravage,  634. 
Phil    Hollenbach   Co.    v.    Hollenbach, 

639. 
Phil    Hollenbeck    Co.    v.    Hollenbach, 

635. 

Philips  v.  Hatch,  567. 
Phillips  v.  Allen,  296. 
Phillips  v.  Barnet,  105,  229. 
Phillips  v.  Corbin  &  Fannin,  616. 
Phillips  v.  Davis,  409,  415. 
Phillips  v.   Graves,  212,  213. 
Phillips  v.  Green,  503,  507. 
Phillips  v.  Hoskins,  203,  505,  506. 
Phillips  v.  Lloyd,  487. 
Phillips  v.  Meyers,  76. 
Phillips  v.  Phillips,  275,  278,  391. 
Phillips  v.  Railway  Co.,  622. 
Phillips  v.  Richardson,  96,  98. 
Phillips  v.  Spalding's  Guardian,  439. 
Philp  v.   Squire,  115. 
Philpott,  In  re,  296. 
Philpott  v.  Kirkpatrick,  114. 
Phinney  v.  Illinois  Cent.  R.  Co.,  621. 
Pickens'  Estate,  In  re,  296. 
Pickering  v.  Gunning,  484. 
Pidge  v.  Pidge,  260,  261. 
Pidgin  v.  Cram,  324. 
Pieper  v.  Shahid,  430. 
Pierce,  In  re,  231. 
Pierce  v.   Boyer-Van  Duran   Lumber 

Co..  639. 

Pierce  v.  Chace,  148.  157. 
Pierce   v.   Pierce,   223,   224,   272,  273, 

351. 

Pierce  v.  Prescott,  426,  428,  429,  457. 
Pierce  v.  Vansell,  218,  225. 
Pierce's  Adm'r  v.  Trigg's  Heirs,  437. 
Pierpont  v.  Wilson,  175,  179. 
Piers  v.  Piers,  49. 
Pierson  v.  Heisey,  388. 
Pierson  v.  Lawler.  566. 
Pigeon  v.  Lane,  622. 
Pike  v.  Brittan,  647. 
Pike  v.  Pike,  53. 
Pile  v.  Pile,  263,  270. 
Pillar  v.  Pillar,  252. 
Pillsbury's  Estate,  In  re,  317. 
Pinckney  v.  Talmage,  584. 
Ping  Min.  &  Mill.  Co.  v.  Grant,  357, 

362,  476. 

Pinkard  v.  Pinkard,  263. 
Pinkley  v.  Chicago  &  E.  I.  R.  Co.,  613. 
Pinnebad  v.  Pinnebad,  251. 
Pinnell  v.  Hinkle,  411. 
Pioneer,  The,  579. 
Pior  v.  Giddens,  150. 


CASES  CITED 
[The  figures  refer  to  pages] 


719 


Pippin  v.  Jones,  84. 

Pirtle  v.  State,  559. 

Pitcairn  v.  Pitcairn,  60. 

Pitcher  v.  Laycock,  506. 

Pittam  v.  Foster,  156. 

Pittis  v.  Pittis,  256. 

Pitts  v.  Pitts,  279. 

Pittsburgh,    C.    &    St.    L.    R.    Co.    v. 

Adams,  614,  619. 
Pizzati,  Succession  of,  312. 
P.   J.  Hunycutt  &  Co.   v.  Thompson, 

333,  361. 

Place  v.  Grand  Trunk  R.  Co.,  619. 
Plahn  v.  Dribred,  347,  353. 
Planche  v.  Colburn,  586. 
Plant  v.  Taylor,  31. 
Plaster  v.  Plaster,  324. 
Platner  v.  Patchin,  183,  184. 
Platt  v.  Southern  Photo  Material  Co., 

615. 

Plattner  v.  Plattner,  50. 
Pleasonton's  Estate,  In  re,  444. 
Pledge  v.  Griffith,  524. 
Plowes  v.  Bossey,  296,  299. 
Plowman  v.  Nicholson,  391. 
Plummer  v.  Jarman,  129. 
Plummer  v.  Northern  Pac.  R.  Co.,  481, 

515 

Plummer  v.  Webb,  354,  377,  385,  643. 
Plymate  v.  Plymate,  258. 
Pochelu's  Emancipation,  In  re,  519. 
Poe  v.  Schley,  457. 
Poindexter  v.  Blackburn,  131. 
Pokanoket,  The,  583,  584. 
Pollock  v.  Pollock,  76,  258. 
Poison  v.  Poison,  281. 
Pomeroy  v.  Manhattan  Life  Ins.  Co., 

202. 

Pond  v.  Carpenter,  157,  188,  205,  212. 
Pond  v.  Curtiss,  430. 
Ponder  v.  D.  W.  Morris  &  Bro.,  173. 
Ponder  v.  Graham,  32. 
Ponder  v.  Morris  &  Bros.,  82. 
Ponsford  v.  Johnson,  72,  74. 
Pool  v.  Pratt,  22. 
Poole  v.  People,  51,  82. 
Pooley  v.  Button,  117. 
Poor  v.  Poor,  80,  256. 
Pope  v.  Heywood  Bros.  &  Wakefleld 

Co.,  638. 

Pope  v.  Pope,  244. 
Pope  joy  v.  Hydraulic  Press  Brick  Co,. 

325. 

Popkin  v.  Popkin,  279. 
Popp  v.  Connery,  208. 
Porch  v.  Fries,  142,  451. 
Porritt  v.  Porritt,  265,  268. 
Port  v.  Port,  38,  41,  44,  45,  48,  49, 

52,  53. 


Porter,  In  re,  467. 

Porter  v.  B.ank  of  Rutland,  187. 

Porter  v.  Briggs,  180,  181. 

Porter  v.  Brooks,  544. 

Porter  v.  Day,  655. 

Porter  v.  Porter,  263. 

Porter  v.  Powell,  324,  325,  332. 

Porter  v.  U.  S.,  42. 

Porterfield  v.  Butler,  157. 

Portland  Iron  Works  v.  Willett,  602. 

Portland  Terminal  Co.  v.  Jarvis,  621. 

Portsmouth  v.  Portsmouth,  18,  19. 

Post  v.  Post,  245,  246,  291. 

Poston  v.  Williams,  473. 

Potier  v.  Barclay,  40. 

Potinger  v.  Wightman,  393,  416. 

Potter  v.  Carpenter,  576. 

Potter  v.  Clapp,  62. 

Potter  v.  Faulkner,  624. 

Potter  v.  Hiscox,  426,  428. 

Potter  v.  Mobley,  160. 

Potter  v.  New  York,  etc.,  R.  Co.,  632. 

Potter  v.  Potter,  62. 

Potter  v.  Thomas,  486. 

Potts  v.  Terry,  399. 

Poussard  v.  Spiers,  588. 

Powell,  Ex  parte,  463,  464. 

Powell  v.  Benthall,  116,  117. 

Powell  v.  Construction  Co.,  653. 

Powell  v.  Evans,  432. 

Powell  v.  Mansom,  218. 

Powell  v.  Powell,  29,  56,  59-,  60,  68 

89,  202,  447. 

Powell  v.  Sherwood,  635. 
Powell  v.  State,  295,  297,  462. 
Powelson  v.  Powelson,  255. 
Powers  v.  Harlow,  522. 
Powers  v.  Maine  Central  R.  R.,  622. 
Powers  v.  Powers,  23,  122,  388. 
Powhatan    Lime    Co.     v.    WhetzePs 

Adm'x,  612. 

Prall  v.  Prall,  253,  259. 
Prall  v.  Smith,  196. 
Prat  v.  Taylor,  125. 
Prather  v.  Prather,  262. 
Pratt  v.  Nitz,  305. 
Pratt's  Adm'r  v.  Baker,  414. 
Pray  v.  Gorham,  355. 
Pray  v.  Pray,  14. 
Pray  v.  Standard  Electric  Co.,  581. 
Pray  v.  Stebbins,  149. 
Preble  v.  Longfellow,  410,  413. 
Prendergast  v.  Prendergast,  248. 
Prentice  v.  Decker,  387. 
Prentiss  v.  Kent  Furniture  Mfg.  Co., 

619. 

Prentiss  v.  Ledyard,  584,  592. 
Prentiss  v.  Mfg.  Co.,  617. 
Prentiss  v.  Paisley,  218. 


720 


CASES  CITED 
[The  figures  refer  to  pages] 


Prescott  v.  Brown,  125,  130. 

Prescott  r.  Norris,  527. 

Prescott  v.  White,  602. 

President,  etc.,  of  Mechanics'  Bank  v. 

New  York  &  N.  H.  R.  Co.,  646. 
Pressley  v.  Incorporated  Town  of  Sal- 

lislaw,  626. 

Presson  v.  Presson,  245. 
Prettyman  v.  Williamson,  121. 
Pretzinger  v.  Pretzinger,  324,  328. 
Preuitt  v.  Preuitt,  253. 
Prevost,  Succession  of,  41. 
Prevost  v.  Gratz,  420. 
Prewit  v.  Wilson,  221. 
Price  v.  Furman,  493,  509,  510,  512, 

517. 

Price  v.  Greer,  565. 
Price  v.  Hewett,  528. 
Price  v.  Jennings,  487,  528. 
Price  v.  Price,  88,  120. 
Price  v.  Sanders,  481,  483,  484. 
Price  v.  Tompkins,  63. 
Pride  v.  Earls  of  Bath,  31. 
Prince  v.  Edwards,  51. 
Prince  v.  Hine,  416. 
Prince  v.  Prince,   319. 
Prindle  v.  Holcomb,  443. 
Prine  v.  Prine,  20. 
Pringle  v.  Producers'  Turpentine  Co., 

589. 

Printz  v.  Brown,  152. 
Prior  v.  Giddens,  150. 
Probate  Court  v.  Is'iles,  133. 
Probate  Judge  v.  Stevenson,  450. 
Proctor  v.  Bigelow,  50. 
Proctor  v.  Proctor,  284. 
Proctor  v.  Sears,  498,  499. 
Proctor  v.  Woodruff,  169. 
Proudley  v.  Fielder,  139. 
Prout  v.  Wiley,  495. 
Prouty  v.  Edgar,  478. 
Provost  v.  Provost,  2GO. 
Prudential  Life  Ins.  Co.  of  America 

v.  Fuller,  487. 
Pruitt,  Ex  parte,  463. 
Pryor  v.  Pryor,  239. 
Pugh  v.  Bowden,  463. 
Pulver  v.  Leonard,  442. 
Purdy  v.  Ernst,  352. 
Purinton  v.  Jamrock,  305,  311,  315. 
Purnell  v.  Purnell,  88. 
Purple  v.  Railroad   Co.,  108. 
Pursley  v.   Hays,  502. 
Puterbaugh's   Estate,   In   re,   314. 
Putnal  v.  Walker,  492,  495,  505,  510, 

512. 

Putnam  v.  Bicknell,  231,  232. 
Putnam  v.  Tennyson,  157. 
Putney,  In  re,  334,  416. 


Pyatt  v.  Pyatt,  331,  414,  446. 
Pyle  v.  Cravens,  473. 
Pyne  v.  Wood,  485,  505. 
Pyott  v.  Pyott,  18. 


Quadring  v.   Downs,   397. 

Quarles  v.  Quarles,  279. 

Quarman  v.  Burnett,  651. 

Quealy  v.  Waldron,  13. 

Queen  v.  Smith,  352. 

Quick  v.  Miller,  101. 

Quigley  v.  Graham,  196. 

Quilty  v.  Battie,  103. 

Quincey  Mining  Co.  v.  Kitts,  627. 

Quincey   v.   Quincey,  277,  279,   281. 

Quinlan  v.  Lackawanna  Steel  Co.,  625. 

Quinlan  v.   Westervelt,  174. 

Quinn  v.  Ladd,  564. 

Quinn  v.  Power,  648. 

Quintana  v.  Lerma,  240. 

Quisenberry  v.  Thompson,  83. 

R 

Rabb  v.  Flenniken,  82. 
Rabe  v.  Hanna,  116. 
Raborn  v.  State,  329. 
j  Rademacher  v.  Rademacher,  275. 
Raden  v.  Georgia  R.  Co.,  368. 
Rader  v.  Adamson,  471. 
Rader  v.  Rader,  250. 
Radford  v.  Carwile,  188,  191. 
Rafferty  v.  People,  558. 
Ragland  v.  Justices  of  Inferior  Court, 

457. 

Ragon  v.  R.  Co.,  618. 
Rahn  v.  Hamilton,  311. 
Railsback  v.  Railsback,  118,  120. 
Railway  Co.  v.  Whitton's  Adm'r,  112. 
Rains  v.  Wheeler,  240. 
Rajnowski  v.  Detroit,  B.  C.  &  A.  R. 

Co.,  377. 

Ralph  v.  Taylor,  556. 
Ralston,  Ex  parte,  408. 
Ralston  v.  Lahee,  470. 
Ralston  v.  Ralston,  271. 
Ramsay  v.  Thompson,   399. 
Ramsdell   v.   Coombs   Aeroplane   Co., 

476. 

Ramsey,  In  re,  462. 
Ramsey  v.  Ramsey,  251,  327,  404,  409. 
Ramsey  v.  Yount,  234. 
Rand  v.  Bogle,  35,  72. 
Randall  v.  Morgan,  228. 
Randall  v.  Randall,  240,  241. 
Randall   v.  Rotch,   572. 
Randall  v.   Sweet,  479,  482,  483. 
Randlett  v.  Rice,  53. 


CASES  CITED 
[The  figures  refer  to  pages] 


Rankin  v.  Miller,  440. 

Rankin  v.  Schiereck,  216,  225. 

Rannells  v.  Gerner,  543. 

Ransom  v.  New  York,  C.  &  St.  L.  R. 

Co.,  315. 

Ransom  v.  Nichols,  139,  194. 
Ransom  v.  Ransom,  246,  290. 
Rapho  v.  Moore,  608. 
Rapid,  The,  567. 
Rapid  Transit  Land  Co.  v.  Sanford, 

500 

Rapp  v.  Rapp,  268,  277. 
Ratcliffe  v.  Walker,  118. 
Rath  v.  Rankins,  199. 
Ratliff  v.   Baltzer's  Adm'r,   538,   539, 

540,  541. 

Ratte  v.  Dawson,  522. 
Rawdon  v.  Rawdon,  21,  56,  57,  59,  60. 
Rawlyns  v.  Vandyke,  323. 
Rawson  v.  Corbett,  414,  431. 
Rawson  v.  Rawson,  32. 
Ray  v.  Haines,  492,  517. 
Ray  v.  Tubbs,  479,  526,  527. 
Raymond  v.  General  Motorcycle  Sales 

Co.,  466,  491,  528. 
Raymond  v.  Loyl,  323. 
Raymond  v.  Raymond,  259. 
Raynes,  In  re,  641. 
Raynes  v.  Bennett,  175,  179,  180. 
Raysor  v.  Lumber  Co.,  576. 
Rea  v.  Durkee,  174,  175,  176. 
Rea  v.  Englesing,  467. 
Rea  v.  Rea,  233. 
Rea  v.  Tucker,  121,  122. 
Reab  v.  Moor,  604. 
Read  v.  Legard,  540. 
Read  v.  Morse,  615. 

Reade  v.  Livingston,  225,  226,  228,  236. 
Reading  v.  Wilson,  410,  412. 
Reading  Fire  Ins.  &  Trust  Co.,  Appeal 

of,  53. 

Real  v.  Warren,  203. 
Ream  v.  Watkins,  362. 
Reams  v.  Taylor,  546. 
Reando  v.  Misplay,  540,  541. 
Reaves  v.  Reaves,  2,  3,  43. 
Rebstock  v.  Rebstock,  252. 
Rector  v.  Bryant  Lumber  &   Shingle 

Mill  Co.,  618. 
Rector  v.  Rector,  259,  466. 
Redden  v.  Baker,  535. 
Redford  v.  Redford,  265. 
Redgrave  v.  Redgrave,  50. 
Redington  v.  Redington,  283. 
Red  River  Nat.  Bank  v.  Ferguson,  210, 

211. 

Reed  v.  Boshears,  504. 
Reed  v.  Harper,  557. 
Reed  v.  Lane,  474,  475. 

TIFF.P.&  D.REL.(3D  ED.)— 46 


Reed  v.  Reed,  59,  116,  117,  120,  256, 

263. 

Reed  v.  Ryburn,  444. 
Reed  v.  Swift,  578. 
Reedie  v.  Railway  Co.,  653. 
Reese  v.  Chilton,  177. 
Reese  v.   Starner,  308. 
Reeves  v.  McNeill,  199. 
Reeves  v.  Reeves,  32,  34,  57,  252. 
Reg.  v.   Avery,  93. 
Reg.  v.  Barnardo,  305. 
Reg.  v.  Brighton,  27. 
Reg.  v.  Chadwick,  27,  34. 
Reg.  v.  Cruse,  92. 
Reg.  v.  Davis,  558. 
Reg.  v.  Doody,  558. 
Reg.  v.  Dykes,  90,  91. 
Reg.  v.  Featherstone,  93. 
Reg.  v.  Griffin,  340. 
Reg.  v.  Gyngall,  344. 
Reg.  v.  Hill,  470. 
Reg.  v.  Jackson,  79,  80,  94. 
Reg.  v.  Kenny,  93. 
Reg.  v.  Millis,  16,  40,  45,  48,  52. 
Reg.  v.  Morby,  323. 
Reg.  v.  Murray,  298. 
Reg.  v.  Nash,  305. 
Reg.  v.  Nicholas,  470. 
Reg.  v.  Orgill,  14. 
Reg.  v.  Phillips,  531. 
Reg.  v.  Stokes,  550. 
Reg.  v.  Thompson,  93. 
Reg.  v.  Tollett,  93,  94. 
Reg.  v.  Torpey,  92. 
Regal  Realty  &  Inv.  Co.  v.  Gallagher, 

160. 

Regan  v.  Superb  Theatre,  368. 
Rehart  v.  Rehart,  250. 
Rehfuss   v.   Rehfuss,   242. 
Reid  v.  Medley's  Adm'r,  611,  628. 
Reid  v.  Miller,  209. 
Reid  v.  Reid,  68,  259,  284. 
Reid's  Estate,  In  re,  303. 
Reiersen  v.  Reiersen,  275. 
Reifschneider  v.  Reifschneider,  22,  38, 

39,  40,  67. 

Reinders  v.  Koppelmann,  319. 
Reinskopf  v.  Rogge,  556. 
Reis,  In  re,  217. 
Reithmaier  v.  Beckwith,  76. 
Reitman  v.  Scheyer,  181. 
Remmington  v.  Lewis,  308. 
Renfrew  v.  Renfrew,  37,  38. 
Reniger  v.  Fogossa,  558. 
Rennington  v.  Cole,  58. 
Rentie  v.  Rentie,  301,  309. 
Republic  of  Hawaii  v.  Li  Shee,  54. 
Respublica  v.  De  Longchamps,  563. 
Reuter  v.  Lawe,  457. 


722 


CASES  CITED 
[The  figures  refer  to  pages] 


Reutkeineier  v.  Nolte,  379,  380. 

lievel  v.  Pruitt,  359. 

Revett  v.  Harvey,  401,  447. 

Rex  v.  Birmingham,  39. 

Rex  v.  Burton-upon-Trent,  16. 

Rex  v.  Clark,  93. 

Rex  v.  De  Manneville,  343,  344. 

Rex  v.  Greenhill,  343. 

Rex  v.  Jaines,  93. 

Rex  v.  Lister,  78. 

Rex  v.  Luffe,  294,  297,  299. 

Rex  v.  March,  94. 

Rex   v.   Morris,   91. 

Rex  v.  Munden,  392. 

Rex  v.  New,  305. 

Rex  v.  Oakley,  436. 

Rex  v.  Owen,  530. 

Rex  v.  Price,  90. 

Rex  v.  Rook,  300. 

Rex  v.  Rotherfield,  478. 

Rex  v.  Tolfree,  93. 

Rex  v.  Twyning,  64. 

Rex  v.  Wakefield,  13,  14. 

Rex  v.  Welford,  589. 

Rex  v.  Williams,  470. 

Reynolds,  In  re,  451. 

Reynolds  v.  Garber-Buick  Co.,  412. 

Reynolds   v.   Hart,  592. 

Reynolds  v.  Hitchcock,  309. 

Reynolds  v.  Lansford,  237. 

Reynolds  v.  McCurry,  512. 

Reynolds  v.  Reynolds,  10,  11,  12,  46, 

259. 

Reynolds  v.  Robinson,  125. 
Reynolds  v.  Sweetser,  176,  324. 
Reynolds  v.  U.  S.,  2,  248. 
Reynolds'  Adm'r  v.  Reynolds,  391. 
Rezabek  v.  Rezabek,  147,  196. 
Rhame  v.  Rhame,  251. 
Rhea  v.  Rhenner,  32,  158. 
Rhoades  v.  Lyons,  152. 
Rhoades  v.  McNulty,  386. 
Rhoades  v.  Rhoades,  77. 
Rhode  Island  Hospital  Trust  Co.  v. 

Humphrey,  317. 
Rhodes  v.  Des  Moines,  621. 
Rhodes  v.  Frazier's  Estate,  483,  485. 
Rhodes  v.  State,  462. 
Rhyne  v.  Hoffman,  295. 
Ribet  v.   Ribet,   283. 
Ricard  v.  Ricard,  63. 
Ricd  v.  Mueller.  103. 
Rice,  Case  of,  407,  442. 
Rice  v.  Anderson,  510. 
Rice  v.  Boyer,  492,  493,  515,  528. 
Rice  v.  Butler,  516. 
Rice  T.  Norfolk  Southern  R»  Co.,  370, 

372. 
Rice  v.  Peet,  538. 


Rice  v.  Railroad  Co.,  108. 

Rice  v.  Rice,  43. 

Rice  v.  Shipley,  198. 

Rich  v.  Cockell,  188. 

Rich  v.  Rich,  233. 

Richard,  In  re,  37. 

Richard  v.  Brehm,  43,  48,  50. 

Richards  v.  Collins,  349,  350,  353. 

Richards  v.  Richards,  79,  131, 138,  252, 

256,  268. 

Richardson  v.  Boynton,  457. 
Richardson  v.  Cooper,  607,  608,  614. 
Richardson  v.  Day,  423. 
Richardson  v.  Linney,  447. 
Richardson  v.  Machine  Works,  598. 
Richardson  v.  Pate,  495. 
Richardson  v.    Richardson,    76,    283, 

436. 

Richardson  v.  Smallwood,  236. 
Richardson  v.  Stodder,  194. 
Richardson  v.   Strong,  540. 
Richardson  v.  Stuesser,  81,  88,  536. 
Richburg  v.  Sherwood,  172. 
Richlands  Iron  Co.  v.  Elkins,  619. 
Richmond  v.  Taylor,  303. 
Richmond  v.  Tibbies,  206. 
Rickards  v.  Attorney  General,  221. 
Riddell  v.  Vizard,  441. 
Riddle  v.  Riddle,  2. 
Riddle's  Estate,  In  re,  391. 
Riddlesden  v.  Wogan,  31. 
Ridenour  v.   International  Harvester 

Co.,  647. 

Ridgely  v.  Ridgely,  59. 
Ridgeway  v.  Market  Co.,  593,  604. 
Rie  v.  Rie,  261. 
Rieger  v.  Schaible,  216. 
Riesen  v.  Riesen,  273. 
Rietman  v.  Stolte,  618. 
Riff,  In  re,  359,  361,  362,  364. 
Riggan  v.  Green,  542. 
Riggs  v.  American  Tract  Soc.,  539. 
Riggs  v.  Price,  167. 
Riggs  v.  Riggs,  327. 
Riggs  v.  Zaleski,  429. 
Rigley  v.  Lee,  98. 
Rigsby  v.   Oil  Well   Supply  Co.,  609, 

617,  618,  625. 
Riley  v.  Carter,  540. 
Riley  v.  Day,  314,  316. 
Riley  v.  Dillon  &  Pennell,  496. 
Riley  v.  Mallory,  493. 
Rima  v.  Iron  Works,  468. 
Rindlaub  v.  Rindlaub,  243,  268. 
Rinehart  v.  Bills,  113,  114. 
Ring  v.  Jamison,  505. 
Ringstad  v.  Hanson,  395,  396, 
Rinker  v.  Streit,  415. 
Rinn  v.  Rhodes,  234. 


Rio  Grande  Southern  R.  Co.  v.  Camp- 
bell, 607,  608,  609. 

Ripple  v.  Kuehne,  389. 

Rish  v.  Iowa  Portland  Cement  Co, 
636. 

Rist  v.  Hartner,  447. 

Ristine  v.  Ristine,  285. 

Ritch  v.  Hyatt,  205. 

Ritter  v.  Ritter,  12. 

Rivers  v.  Durr,  470. 

Rivers  v,  Gregg,  483,  486. 

Rives  v.  Sneed,  313,  314,  315. 

Rix  v.  Rix,  274,  275. 

Rixey's  Adm'r  v.  Deitrick,  129,  186. 

Roach  v.  Garvan,  67,  330,  409. 

Roach  v.  Quick,  184,  477. 

Roadcap  v.  Sipe,  97,  98. 

Robalina  v.  Armstrong,  305. 

Robbins  v.  Eaton,  500,  502,  503. 

Robbins  v.  Robbins,  224,  275,  278,  279, 
282. 

Roberts,   In   re,   445. 

Roberts  v.  Coleman,  391. 

Roberts  v.  Frisby,  76. 

Roberts  v.  Haines,  200. 

Roberts  v.  Knights,  563. 

Roberts  y.  People,  90,  91. 

Roberts  v.  Rockbottom  Co.,  580. 

Roberts'  Widow  v.  Stanton,  469. 

Robertson  v.  Cole,  13. 

Robertson  v.  Railroad  Co.,  628. 

Robertson  v.  Robertson,  240. 

Robertson  v.  State,  45,  48,  52. 

Robertson  v.  Warden,  86. 

Robinson  v.  Allison,  475,  494. 

Robinson  v.  Cone,  523. 

Robinson  v.  Davison,  594,  603. 

Robinson  v.  Gosnold,  177. 

Robinson  v.  Hathaway,  518. 

Robinson  v.  Hindman,  589. 

Robinson  v.  Hoskins,  501. 

Robinson  v.  Reynolds,  158. 

Robinson  v.  Robinson,  250,  327,  423. 

Robinson  v.  Ruprecht,  301. 

Robinson  v.  Weeks,  473,  510. 

Robinson  v.  Zollinger,  399,  455. 

Roche  v.  Chaplin,  412. 

Roche  v.  Washington,  55,  69. 

Roche  v.  Waters,  437. 

Rockcastle  Mining,  Lumber  &  Oil  Co. 
v.  Baker,  50. 

Rockford,  R.  I.  &  St.  L.  R.  Co.  v.  De- 
laney,  377. 

Rockwell  v.  Robinson's  Estate,  127. 

Rodemeyer  v.  Rodman,  157. 

Rodgers  v.  Bank,  133. 

itodgers  v.  Rodgers,  289. 

Roebling  Const.  Co.  v.  Thompson,  622. 

Roff  vs  Summit  Lumber  Co.,  610. 


728 


Rogers  v.  Blackwell,  539,  545, 

Rogers  v.  Brooks,  140. 

Rogers  v.  Clifton,  601. 

Rogers  v.  Dill,  437. 

Rogers  v.  Eaton,  207. 

Rogers  v.  Harris,  436. 

Rogers  v.  Illinois  Cent.  R.  Co.,  637. 

Rogers  v.  Lindsay,  446. 

Rogers  v.  McLean,  442. 

Rogers  v.   Manufacturing   Co.,  627. 

Rogers  v.  Parham,  598. 

Rogers  v.  Rogers,  106,  241,  265,  273, 
274,  275,  279,  280,  281,  327. 

Rogers  v.  Smith,  108,  111,  367,  368, 
369. 

Rogers  v.  State,  463. 

Rogers  Mfg.  Co.  v.  Rogers,  599. 

Rohrer,  In  re,  303. 

Rohwer  v.  District  Court  of  First  Ju- 
dicial District,  302,  477,  488. 

Roller   v.    Roller,  340. 

Rolling  Mill  Co.  v.  Corrigan,  613. 

Rollins  v.  Chalmers,  381. 

Rollins  v.  Marsh,  412. 

Rood  v.  Wright,  206,  211. 

Rooks  v.  Tindall,  463. 

Roos  v.  Basham,  155. 

Root  v.  Kansas  City  Southern  R.  Co., 
622. 

Root  v.  Root,  250. 

Roscoe  v.  McDonald,  410. 

Rose  v.  Bates,  158. 

Rose  v.  Boston  &  A.  R.  Co.,  631. 

Rose  v.  Rose,  244,  257,  264. 

Rose  v.  Sanderson,  196. 

Roseborough  v.  Roseborough,  415,  416. 

Kosenfeld  v.  Rosenfeld,  255. 

Rosenkrans  v.  Rosenkrans,  316. 

Rosenthal  v.  Mayhugh,  158. 

Ross  v.  Howard,  154. 

Ross  v.  Johnson,  86,  179,  180. 

Ross.  v.  Ross,  178,  303,  304,  310,  311, 
316,  320. 

Ross  v.  Singleton,  156,  157. 

Ross  v.  Southwestern  R.  Co.,  407. 

Ross  v.  Sparks,  39,  64. 

Ross'  Guardianship,  In  re,  409. 

Ross  P.  Curtice  Co.  v.  Kent,  518. 

Roszel  v.  Roszel,  7. 

Roth  v.  Roth,  10,  59,  60. 

Roth's  Estate,  In  re,  447. 

Rothbarth  v.  Herzfeld,  567. 

Rott  v.   Goehring,  114,   119. 

Rounds  v.  Railroad  Co.,  650. 

Rounds  Bros.  v.  McDaniel,  334,  358, 
359,  360,  361,  363,  364. 

Roush  v.  Griffith,  429. 

Rousk    v.    Griffith,    428. 

Roux  v.  Lumber  Co.,  626. 


724 


CASES  CITED 
[The  figures  refer  to  pages] 


Rowe  v.  Rowe,  253,  345. 

Rowe  v.  Rugg,  340. 

Rowe  v.  Smith,  103,  104. 

Rowell  v.  Barber,  226,  227. 

Rowell  v.  Rowell,  327. 

Rowlands  v.  Chicago  &  N.  W.  R.  Co., 

634. 

Rowley  v.  Towsley,  424. 
Rowney,  Case  of,  141. 
Royal  v.  Grant,  354. 
Royal  v.  Royal,  350. 
Royal  v.  Southerland,  161,  210. 
Royer,  Appeal  of,  426,  427,  434. 
Roys  v.  Johnson,  579. 
Royston  v.   Royston,   436. 
Rubin  v.  Strandberg,  505. 
Rudd  v.  Rounds,  113. 
Ruddock  v.  Marsh,  169,  172. 
Rudowsky's  Estate,  In  re,  176. 
Rudy  v.  Rudy,  457. 
Rue  v.  Meirs.  469. 
Ruhl  v.  Heintze,  82,  173. 
Rule  v.  Broach,  439 
Rullman  v.  Rullman,  450. 
Rummels  v.  Clark,  453. 
Rumney  v.  Keyes,  177. 
Rumping  v.  Rumping,  243,  245. 
Rundle  v.  Pegram,  8. 
Runkle  v.  Runkle.  270. 
Ruohs  v.  Backer,  453,  454. 
Rush  v.  Wick,  477. 
Russel  v.  Chambers,  381. 
Russel  v.  Hammond,  236. 
Russel  v.  People's  Sav.  Bank,  204,  206, 

207. 
Russell  v.   Borden's  Condensed   Milk 

Co.,  616. 

Russell  v.  Brooks,  125,  130. 
Russell  v.  Come,  368,  369. 
Russell  v.  Railroad  Co.,  628,  632. 
Russell  v.  Russell,  252. 
Russell  v.  Slade,  579. 
Russell   v.  Tillotson,  620. 
Russner  v.  McMillan,  404. 
Rust  v.  Goff,  167. 
Rust  v.  Vanvacter,  345. 
Rutledge  v.  Rutledge,  81,  186,  196. 
Rutledge  v.  Tunns,  43,  48. 
Ryall  v.  Kennedy,  393. 
Ryals  v.  Ryals,  19. 
Ryan  v.  Dayton,  586,  597,  605. 
Ryan  v.  Delaware  &  Hudson  Co.,  612, 

622. 

Ryan  v.  Foreman,  315,  317. 
Ryan  v.  Fralick,  376. 
Ryan  v.  Morrison,  507. 
Ryan  v.  Ryan,  283. 
Ryan  v.  U.  S.,  557. 
Ryan's  Estate,  In  re,  81. 


Ryder,  Ex  parte,  481. 
Ryder,  In  re,  324. 
Ryder  v.  Bickerton,  432. 
Ryder  v.  Hulse,  197. 
Ryder  v.  Ryder,  271. 
Ryder  v.  Wombwell,  484,  486. 
Rye  v.  Stubbs,  598. 
Ryerson  v.  Ryerson,  107. 


-,271. 

Sabens  v.  U.  S.,  558. 

Sadowskl  v.  Thomas  Furnace  Co.,  638. 

Saffer  v.  Mast,  538. 

Safford  v.  Safford,  12. 

Sage  v.  Baltimore  &  O.  R.  Co.,  632. 

Sainsevain  v.  Luce,  430. 

St.  John  v.  St.  John,  240. 

St.  John's  Parish  v.  Bronson,  484. 

St.  Johnsbury  &  L.  C.  R.  Co.  v.  Hunt, 
643. 

St.  Louis,  I.  M.  &  S.  R.  Co.,  v.  An- 
drews, 609. 

St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Dupree, 
632. 

St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Yonley, 
653. 

St.  Louis,  K.  C.  &  C.  R.  Co.  v.  Conway, 
612. 

St.  Louis  Southwestern  R.  Co.  v. 
Harvey,  648. 

St.  Louis  Southwestern  R.  Co.  v.  Pur- 
cell,  110. 

St.  Louis  &  S.  F.  R.  Co.  v.  Ames,  612. 

St.  Louis  &  S.  F.  R.  Co.  v.  Little,  634. 

St.  Louis  &  S.  F.  R.  Co.  v.  Weaver,  632. 

St.  Louis  &  S.  F.  R.  Co.  v.  Wyatt,  630. 

Sale  v.  Saunders,  133,  141. 

Salinas  v.  Bennett,  503. 

Salisbury,  In  re,  437. 

Salisbury  v.  Spofford,  198. 

Sallee  v.  Arnold,  129. 

Sallier,   Succession   of,  514. 

Salorgne  v.  Salorgne,  265. 

Salser  v.  Barron,  494. 

Salter  v.  Howard,  643,  644. 

Salter  v.  Salter,  137. 

Saltmarsh  v.  Candia,  108. 

Salvin's  Will,  In  re,  63,  65. 

Sammon  v.  Wood,  359. 

Sample  v.  Guyer,  205,  207,  211,  233. 

Sampson  v.  Holbrook,  624. 

Sampson  v.  Sampson,  391. 

Sams  v.  Sams'  Adm'r,  301. 

Samuel  v.   Marshall,  539. 

San  Antonio  Light  Pub  Co.  v.  Moore, 
597. 

Sanborn  v.  Goodhue,  387. 


CASES  CITED 
[The  figures  refer  to  pages] 


725 


Sanborn  v.  Neilson,  122. 

Sanders  v.  Forgasson,  443. 

Sanders  v.  Gurley,  388. 

Sanders  v.  Sanders,  306,  327. 

Sanderson,  In  re,  641. 

Sandmeyer   v.    Dolijsi,   466. 

Sandusky  Portland  Cement  Co.  v. 
Rice,  624. 

Sanford   v.   Bertrau,   148. 

Sanford  v.  Sanford,  391. 

Sanger  Bros.  v.  Trammell,  176. 

Santiago  v.  Cruz,  37. 

Santiago  v.  John  E.  Walsh  Steve- 
dore Co.,  612. 

Santos  v.  Sweeney,  87,  244. 

Saperstone  v.  Saperstone,  288. 

Sargent  v. — ,  376,  378. 

Sargent  v.  Mathewson,  385. 

Sassaman  v.  Wells,  323,  333. 

Saul  v.  His  Creditors,  70. 

Saunders  v.  Alvido  &  Laserre,  376. 

Saunders  v.  Saunders,  345. 

Saunders  Transfer  Co.  v.  Underwood, 
110. 

Saunderson  v.  Marr,  473. 

Sausey  v.  Gardner,  130. 

Savage  v.  Foster,  528. 

Savage  v.  Savage,  234. 

Savannah,  F.  &  W.  R.  Co.  v.  Smith, 
356,  376. 

Savery  v.  King,  389. 

Savini  v.  Lousada,  442. 

Sawyer  v.  Churchill,  225. 

Sawyer  v.  Cutting,  479. 

Sawyer  v.  Lufkin,  540,  541. 

Sawyer  v.   Martins,  651. 

Sawyer  v.  Metters,  233. 

Sax  v.  Detroit,  G.  H.  &  M.  R.  Co.,  575. 

Saxe  v.  Shubert  Theatrical  Co.,  582. 

Saxon  v.  Saxon,  147. 

Say's  Bx'rs  v.  Barnes,  444. 

Sayles  v.  Foley,  636,  637. 

Sayles  v.  Sayles,  240. 

Scamell  v.  St.  Louis  Transit  Co.,  356. 

Scammon  v.  Chicago,  647. 

Scammon  v.  City,  652. 

Scanlan  v.  Cobb,  541. 

Scanlon  v.  Walshe,  296. 

Scantland  v.   Com.,  307. 

Scarborough  v.  Watkins,  230. 

Scarlett  v.  Norwood,  378,  383. 

Scawen  v.  Blunt,  131. 

Sceva  v.  True,  540,  541. 

Schaadt  v.  Mutual  Life  Ins.  Co.  of 
New  York,  155. 

Schafer  v.  Eneu,  316. 

Schaffer  v.  Krestovnikow,  51,  53,  63, 
65,  68. 


Schaffer  v.  Richardson's  Estate,  In  re, 

63. 

Schaible  v.  Railway  Co.,  632. 
Schammel  v.  Schammel,  352. 
Schaps  v.  Lehner,  542. 
Schaub  v.  Schaub,  268. 
Scheller  v.  Silbermintz,  656. 
Schenk   v.    Strong,    527. 
Scheuer  v.  Monash,  587. 
Schichtl  v.  Schichtl,  351. 
Schickhaus  v.  Sanford,  203. 
Schillinger  Bros.  Co.  v.  Smith,  618. 
Schlehuber  v.  American  Express  Co., 

638. 

Schlereth  v.  Railway  Co.,  632. 
Schlitz  v.  Roenitz,  316. 
Schlossberg  v.  Lahr,  335. 
Schmelzer  v.  Chester  Traction  Co.,  110. 
Schmidt  v.  Keehn,  100. 
Schmidt  v.  Milwaukee  &  St.  P.  R,  Co., 

521,  523. 
Schminkey  v.  T.  M.  Sinclair  &  Co.,  616, 

619,   624. 

Schmisseur  v.  Beatrie,  64. 
Schmit  v.  Mitchell,  382. 
Schmitheimer  v.  Eiseman,  528. 
Schneider  v.  Biberger,  151. 
Schneider  v.  Breier's  Estate,  183,  210, 
Schneider  v.  Garland,  207. 
Schneider  v.  Rosenbaum,  180. 
Schoen  v.  Schoen,  264. 
Schoenberg  v.  Voigt,  360. 
Schoennauer  v.  Schoennauer,  327. 
Schofield  v.  Schofield,  26,  28,  67,  69,  71. 
Scholefield  v.  Eichelberger,  567. 
School  Directors  v.  James,  417. 
School  Dist.  No.  1  v.  Bragdon,  524. 
Schoonover  v.  Sparrow,  362. 
Schorn  v.  Berry,  122. 
Schradin  v.  New  York  Cent.  &  H.  R.  R. 

Co.,  635. 

Schrimpf  v.  Settegast,  323,  356. 
Schroeder  v.  State,  345,  347. 
Schroter  v.  Schroter,  10,  29. 
Schubert  v.  Barnholdt,  62,  65. 
Schuchart  v.  Schuchart,  42,  51. 
Schuff  v.  Ransom,  544. 
Schuler  v.  Henry,  101,  103. 
Schultz  v.  Christopher,  106. 
Schultz  v.  Morrison,  337. 
Schultz  Lumber  Co.  v.  Robinson,  210. 
Schulz  v.  Schulz,  105. 
Schulz,  Jr.,  Co.  v.  Raimes  &  Co.,  566, 

567,  568. 
Schumacher  v.  Great  Northern  R.  Co., 

6,  38,  39,  41, 

Schumer  v.  Register,  335. 
Schumpert,  Ex  parte,  347,  348. 


726 


CASES  CITED 
[The  figures  refer  to  pages] 


Schurr  v.  Savigny,  605. 

Schurz  v.  McMeuamy,  87. 

Schuster  v.  Bauman  Jewelry  Co.,  357. 

Schuyler  v.  Broughton,  154. 

Schuyler  v.  Hoyle,  133,  134,  139. 

Schwartz,  In  re,  345. 

Schwartz  v.  Gilmore,  653. 

Schwartz  v.  Saunders,  125. 

Schwartz  v.  Schwartz,  16. 

Schwerdt  v.  Schwerdt,  392. 

Schwingle  v.  Keifer,  49. 

Scidmore  v.  Smith,  643. 

Scoggins  v.  Scoggins,  349. 

Scott,  Case  of,  636. 

Scott  v.  Buchanan,  494,  507. 

Scott  v.  Collier,  206,  207. 

Scott  v.  Com.,  551. 

Scott  v.  Gotten,  163. 

Scott  v.  Freeland,  419,  420. 

Scott  v.   Key,  304. 

Scott  v.  O'Brien,  120. 

Scott  v.  Paquet,  20. 

Scott  v.  Payne  Bros.,  087,  640. 

Scott  v.  Royston,  400,  468. 

Scott  v.  Scott.  203,  208,  314. 

Scott  v.   Sebright,   13,   14. 

Scott  v.  Shufeldt,  12,  16,  60. 

Scott  v.  Watson,  335,  525. 

Scott  v.  White,  363. 

Scott's  Account,  In  re,  444. 

Scott-Sparger  Co.  v.  Ferguson,  163. 

Scottish  American    Mortgage   Co.   v. 

Butler,  564.- 
Scoville  v.  Brock,  426. 
Scranton  v.  Stewart,  489,  506. 
Scripps  v.  Reilly,  120. 
Scroggins  v.  Scroggins,  10. 
Scruggs  v.  Gage,  201. 
Scudamore,  Ex  parte,  534. 
Scully  v.  Industrial  Commission,  641. 
Scully's  Estate,  In  re,  159. 
Seaburn  v.  Zachmann,  601, 
Seaman  v.  Duryea,  456. 
Searcy  v.  Hunter,  489,  516. 
Searing  v.  Searing,  135. 
Searle  v.  Galbraith,  539. 
Searle  v.  Ridley,  589. 
Searles  v.  Northwestern  Mut.  Life  Ins. 

Co.  of  Milwaukee,  533. 
Searles  v.  Searles.  289. 
Sears  v.  Collie,  430. 
Sears  v.  Giddey,  182,  183. 
Sears  v.  Terry,  406,  407. 
Seaton  v.  Benedict,  171. 
Seaver  v.  Adams,  118,  120,  122. 
Seaver  v.  Lang,  193,  207. 
Seaver  v.  Railroad  Co.,  632. 
Seaver ns  v.  Gerke,  407. 
Seavey  v.  Shurick,  583. 


Sebastian  v.  Bryan,  458. 

Secklich  v.  Harris-Emery  Co.,  639. 

Secor  v.  Secor,  264. 

Seed  v.  Jennings,  517. 

Seeds  v.  Seeds,  264,  265. 

Seeley  v.  Seeley,  350. 

Seeley  v.  Seeley-Howe-Le  Van  Co.,  490, 

517. 

Segelbaum  v.  Segelbaum,  256,  259. 
Seguin,  Appeal  of,  418. 
Seibert  v.  Seibert,  283. 
Seigmund  v.  Seigmund,  270. 
Seller  v.  People,  91,  97. 
Seilheimer  v.  Seilheimer,  12. 
Seipel  v.  Trust  Co.,  586. 
Seiter  v.  Straub,  417. 
Seitz  v.  Mitchell,  125. 
Selah  v.  Selah,  60. 
Selby  v.  Selby,  450. 
Sellars  v.  Davis,  58. 
Selleck  v.  Selleck,  217. 
Seller  v,  Seller,  286. 
Sells  v.  Grand  Trunk  Ry.,  634. 
Selman  v.   Barnett,  385. 
Semet-Solway  Co.  v.  Wilcox,  596. 
Semmes  v.   City   Fire  Ins.  Co.,   567, 

568. 

Sencerbox  v.  First  Nat.  Bank,  201. 
Senge  v.  Senge,  62. 
Senser  v.  Bower,  64. 
Sergeant  v.  Steinberger,  149. 
Sergent  v.  Sergent,  258. 
Sergison,  Ex  parte,  467. 
Serres,  Succession  of,  303. 
Sessions  v.  Kell,  405. 
Sessions'  Estate,  In  re,  310. 
^Setzer  v.  Setzer,  20. 
Severa  v.   National  Slavonic  Society 

of  U.  S.,  72. 

Severance  v.  Severance,  49. 
Sewall  v.  Roberts,  315,  316. 
Sewall  v.  Sewall,  277,  278. 
Sewell  v.  Sewell,  528. 
Sexton  v.  New  York  Cent.  &  H.  R,  R. 

Co.,  651. 

Seybold  v.  Morgan,  175,  183. 
Seymour  v.  Fellows,  234. 
Shackelton  v.  Sebree,  555. 
Shackett  v.  Shackett,  283. 
Shackleton   v.    Shackleton,    278,  '280, 

281. 
Shade  v.  Ash  Grove  Lime  &  Portland 

Cement  Co.,  636. 
Shaeffer  v.  Sheppard,  125. 
Shaffer  v.  Detie,  475. 
Shafher  v.  State,  23,  24. 
Shamleffer  v.  Mill  Co.,  438. 
Shanks  v.  Seamonds,  438. 
Shanny  v.  Androscoggin  Mills,  626. 


CASES  CITED 
[The  figures  refer  to  pages] 


727 


Sharbero  v.  Miller,  535. 

Sharon  v.  Sharon,  48,  52. 

Sharron's  Estate,  In  re,  311. 

Sharp,  Ex  parte,  463,  464. 

Sharp  v.  Erie  R.  Co.,  649. 

Sharp  v.  McBride,  592,  598. 

Sharp  v.  Khiel,  579. 

Sharpe  v.  Baker,  140,  147. 

Sharpe  v.  Crispin,  393. 

Sharpless,  Appeal  of,  158. 

Sharron's  Estate,  In  re,  311,  314. 

Shattock  v.  Shattock,  191. 

Shattuck  v.  Hammond,  121. 

Shattuck  v.  Shattuck,  38,  48. 

Shaver  v.  Ingham,  590,  591,  593. 

Shaver  v.  McCarthy,  553. 

Shaw  v.  Bernal,  200. 

Shaw  v.  Boyd,  511. 

Shaw  v.  Coffin,  529. 

Shaw  v.  Gould,  277. 

Shaw  v.  Nachtwey,  350. 

Shaw  v.  Russ,  166. 

Shaw  v.  Shaw,  246,  250,  253. 

Shaw  v.  Sheldon,  618. 

Shaw  v.  Thompson,  540. 

Shaw's  Estate,  In  re,  201. 

Shawnee  Gas  &  Electric  Co.  v.  Hunt, 

368. 
Shawnee  Gas  &  Electric  Co.  v.  Mote- 

senbocker,  368,  369. 
Shea  v.  Railroad  Co.,  650. 
Sheddon  v.  Patrick,  303. 
Sheehan  v.  Railroad  Co.,  629. 
Sheehan  v.  Sheehan,  276. 
Sheers  v.  Stein,  349,  353. 
Sheetz's  Estate,  In  re,  399. 
Sheffield  v.  Franklin,  312. 
Sheldon  v.  Sheldon,  251. 
Sheldon's  Lessee  v.  Newton,  479. 
Shell  v.  Shell,  251. 
Shelmerdine,  In  re,  467. 
Shelton  v.  Pendleton,  180. 
Shelton  v.  Springett,  322,  481. 
Shepard  v.  Carter,  64. 
Shepard  v.  Shepard,  231,  232. 
Shepherd  v.  Evans,  428. 
Shepherd  v.  Shepherd,  14,  16. 
Shepperson  v.  Shepperson,  230. 
Sheridan  v.  Charlick,  648. 
Sheriff  of  Fayette  v.  Buckner,  129. 
Sherley  v.  Billings,  650. 
Sherlock  v.  Kimmell,  357. 
Sherman  v.  Ballou,  401. 
Sherman   v.   Champlain  Transp.   Co., 

596,  598. 

Sherman  v.  Johnson,  377. 
Sherman  v.  Sherman,  13,  16. 
Sherry  v.  Littlefleld,  83. 
Sherry  v.  Sansberry,  420. 


Sherwood  v.  Hall,  643. 

Sherwood  v.  Warner,  647. 

Shiek  v.  Howe,  320. 

Shields  v.  Yonge,  368,  372,  373,  377. 

Shipley  v.  Smith,  493,  509,  519. 

Shirey  v.  Shirey,  224,  225. 

Shirk  v.  Shultz,  475,  493,  512. 

Shirley  v.  Shirley,  129. 

Shirley  v.  Taylor's  Heirs,  535. 

Shiver  v.  Brock,  391. 

Shivey  v.  Shivey,  280. 

Shockley  v.  Shepherd,  335. 

Shomaker  v.  Waters,  201. 

Shoro  v.  Shoro,  13,  14. 

Shors  v.  Shors,  77. 

Short  v.  Battle,  195. 

Shoulters  v.  Allen,  541., 

Shrader  v.  Shrader,  32. 

Shrady  v.  Logan,  11. 

Shreeves  v.  Caldwell,  492,  508. 

Shreve,  In  re,  466. 

Shuey  v.  Adair,  154. 

Shuman  v.  Steinel,  171,  179. 

Shumate  v.  Shumate,  167,  168. 

Shumway  v.  Cooper,  194. 

Shurtleff  v.  Millard,  518. 

Shurtleff  v.  Rile,  426. 

Shute  v.  Dorr,  354,  356,  359,  360,  363. 

Shutt  v.  Carloss,  451. 

Sias  v.  Consolidated  Lighting  Co.,  613. 

Sickles  v.  Carson,  14. 

Sidway  v.  Nichol,  199,  206. 

Signaigo  v.  Signaigo,  319. 

Sikes  v.  Bradley,  234. 

Sikes  v.  Tippins,  114,  122. 

Sillings  v.  Bumgardner,  429. 

Silverstein  v.   Silverstein,  264. 

Siman  v.  Lens,  451. 

Simmons  v.  Arnim,  469! 

Simmons  v.  Brown,  97,  98. 

Simmons  v.  Bull,  305,  306. 

Simmons   v.    International   Harvester 

Co.,  210. 

Simmons,  v.  McElwain,  231,  232,  237. 
Simmons  v,  Meyers,  147. 
Simmons  v.  State,  530. 
Simmons  v.  Stevens,  13. 
Simms  v.  Norris,  412. 
Simoeneau  v.  Pacific  Electric  R.  Co'., 

333. 

Simon  v.  Allen,  597. 
Simon  v.  Meaux,  155. 
Simon  v.  Simon,  249. 
Simon  v.  State,  44. 
Simonds  v.   Simonds,  248. 
Simonson's  Estate,  In  re,  81. 
Simonton  v.  Bacon,  538. 
Simpson  v.   Alexander,  468. 
Simpson  v.  Belcher,  167. 


728 


CASES  CITED 
[The  figures  refer  to  pages] 


Simpson  v.  Gonzalez,  452,  453. 

Simpson  v.  Gutteridge,  217. 

Simpson    v.    Prudential    Ins.    Co.    of 

America,  475,  487. 
Simpson  v.  Simpson,  77. 
Sims  v.  Birden,   295. 
Sims  v.  Everhardt,  466,  491,  495,  528. 
Sims  v.  Gunter,  467,  474,  478,  481,  519. 
Sims  v.  Renwick,  442. 
Sims  v.  Rickets,  230,  231,  232,  233. 
Sims  v.  Sims,  20,  109,  119. 
Sims  v.  Sims'  Adm'r,  388. 
Sinclair  v.  Sinclair,  12. 
Sines  v.  Superintendents  of  Poor,  577. 
Singer  v.  McCormick,  589. 
Singer  Mfg.  Co.  v.  Lamb,  496,  506. 
Singer's  Estate,  In  re,  239. 
Singleton  v.  State,  529,  530. 
Sioux  City  &  P.  R.  Co.  v.  Stout,  521, 

522. 

Sir  Ralph  Bovy,  Case  of,  225,  226. 
Sisemore  v.    Sisemore,  260. 
Siter,  Case  of,  134. 
Skarf  v.  Soulby,  236. 
Skean  v.  Skean,  260. 
Skelton  v.  Ordinary,  434. 
Skidmore  v.  Davies,  453. 
Skidmore  v.   Skidmore,  326. 
Skillman  v.  Skillman,  125. 
Skillman's  Estate,  In  re,  84. 
Skinner,  Ex  parte,  343. 
Skinner  v.  Housatonic  R.  Corporation, 

377. 

Skinner  v.  Maxwell,  476,  507. 
Skinner  v.  Skinner,  256,  278. 
Skinner  v.  Tirrell,  175,  179,  181. 
Slafter  v.   Savage,  468. 
Slanning  v.  Style,  231. 
Slater  v.  Advance  Thresher  Co..  647. 
Slater  v.  Jewett,  612,  625,  627,  628. 
Slater  v.  Nason,  564. 
Slater  v.  Rudderforth,  492,  507. 
Slater  v.  Slater,  345,  349. 
Slattery  v.  Lawrence  Ice  Co.,  521. 
Slattery  v.  Slattery,  350. 
Slaughter  v.  Heath,  535. 
Slaughter  v.  Nashville,  C.  &  St.  L.  R. 

Co.,  366. 

Slaymaker  v.  Bank,  132. 
Slayton  v.  Barry,  528. 
Slinger's  Will,  In  re,  559. 
Slingerland  v.  Slingerland,  223. 
Sloane  v.  Boyer,  175,  179. 
Sloan's  Estate,  In  re,  147,  153. 
Slocum's  Estate,  In  re,  150. 
Slusher  v.  Weller,  487. 
Small  v.  Champeny,  535. 
Smalley  v.  Lawrence,  153. 
Smallwood  v.  Smallwood,  252. 


Smart  v.  Whaley,  57. 
Smedley  v.  Felt,  87. 
Smedley  v.   Smedley,  250. 
Smee  v.  Smee,  553,  554. 
Smelser  v.  Meier,  234. 
Smidt  v.  Benenga,  406,  417. 
Smilie's  Estate,    In  re,  133. 
Smith,  Appeal  of,  401. 
Smith,  In  re,  345,  347. 
Smith  v.  Allen,  219,  221,  593. 
Smith  v.  Atchison,  T.  &  S.  P.  R.  Co., 
523. 

Smith  v.  Baker,  589,  590. 

Smith  v.  Bank,  37,  39. 

Smith  v.  Bean,  428. 

Smith  v.  Car  Works,  609,  614. 

Smith  v.  Cashie  &  Chowan  R.  &  Lum- 
ber Co.,  596,  597,  598. 

Smith  v.  Chicago  Junction  R.  Co.,  607. 

Smith  v.  Cole,  509. 

Smith  v.  Davenport,  335. 

Smith  v.   Davis,   448. 

Smith  v.  Dayton  Coal  &  Iron  Co.,  616. 

Smith  v.  Deer's  Adm'rs,  300,  304. 

Smith  v.  Dibrell,  425. 

Smith  v.  Farmers'  &  Merchants'  Nat. 
Bank,  131. 

Smith  v.  Foran,  602,  603. 

Smith  v.  Fuller,  63,  64. 

Smith  v.  Garber,  308. 

Smith  v.  Geortner,  331. 

Smith  v.  Gilbert,  332,  361. 

Smith  v.  Gillapp,  119. 

Smith  v.  Gott,  209. 

Smith  v.  Gummere,  437,  458,  459. 

Smith  v.  Haas,  409,  454. 

Smith  v.  Haire,  134. 

Smith  v.  Hockenberry,  120,  122. 

Smith  v.  Howe,  207,  208. 

Smith  v.  Jordan,  337. 

Smith  v.  Joshua  Levines,  The,  605. 

Smith  v.  Kaye,  113,  115. 

Smith  v.  Kelley,  500. 

Smith  v.  Kelly's  Heirs,  303. 

Smith  v.  Knowles,  241. 

Smith  v.  Knowlton,  359. 

Smith  v.  Kron,  525. 

Smith  v.  Lyke,  117. 

Smith  v.  McDonald.  210,  469. 

Smith  v.  Martin,  184. 

Smith  v.  Masten,  121. 

Smith  v.  Mayo,  498,  504. 

Smith  v.  Moorehead,  30. 

Smith  v.  Morehead,  56. 

Smith  v.  Nicholas  Bldg.  Co.,  113. 

Smith  v.  North  Memphis  Sav.  Bank, 
38. 

Smith  v.  Oliphant,  483. 

Smith  v.  People,  44,  50. 


CASES  CITED 
[The  figures  refer  to  pages] 


729 


Smith  v.  Potter,  627,  628. 

Smith  v.  Railroad  Co.,  589,  619. 

Smith  v.  Reed,  42,  51. 

Smith  v.  Rice,  114. 

Smith  v.  Robson,  582. 

Smith  v.  Rock  Island,  A.  &  L.  R.  Co., 

612. 

Smith  v.  Russell,  146. 
Smith  v.  Ryan,  539,  542. 
Smith  v.  Sackett,  466. 
Smith  v.  St.  Joseph,  108,  111. 
Smith  v.  Silence,  158. 
Smith  v.  Smith,  11,  15,  19,  67,  77,  107, 

117,    152,   246,    253,    268,    284,    290, 

362,  418,  433,  434,  461. 
Smith  v.  Smith's  Ex'r,  475. 
Smith  v.  Taylor,  96. 
Smith  v.  Theobald,  584. 
Smith  v.  Thompson,  188. 
Smith  v.  Weed,  154,  198. 
Smith  v.  Williams,  578. 
Smith  v.  Williamson,  556. 
Smith  v.  Young,  352,  395,  406. 
Smith's  Committee  v.  Forsythe,  540, 

541,  542. 

Smith's  Ex'r  v.  Johns,  200. 
Smith's  Guardianship,  In  re,  344. 
Smith's  Will,  In  re,  554. 
Smith  &  Co.  v.  Ohler,  596. 
Smoot  v.  Bell,  442. 
Sinoot  v.  Ryan,  473,  481,  496,  516. 
Smyley  v.  Reese,  182. 
Smyth  v.  Burns'  Adm'rs,  433. 
Smyth  v.  State,  39. 
Snavely  v.  Harkrader,  431,  453. 
Snediker  v.  Everingham,  356,  359,  363. 
Sneed  v.  Ewing,  50. 
Sneed  v.  Sneed,  246. 
Snell  v.  Ham,  324,  332. 
Snell  v.  Snell,  35. 
Snell  v.  Stone,  170. 
Snell  v.  Weldon,  554. 
Snelling  v.  Lord  Huntingfleld,  579. 
Snickles  v.  St.  Joseph,  127. 
Snider  v.  Newell,  380. 
Snodgrass'  Appeal,  434. 
Snook  v.  Watts,  543. 
Snover  v.  Blair,  176. 
Snow  v.  Sheldon,  164. 
Snow  v.  Snow,  279,  280. 
Snowball's  Estate,  In  re,  398,  404. 
Snowman  v.  Herrick,  540. 
Snuffer  v.  Karr,  74. 
Snyder  v.  Jett,  110,  128. 
Snyder  v.  People,  93,  94. 
Snyder  v.  Railroad  Co.,  648. 
Sobpl  v.  Sobol,  11. 
Society   for   the   Propagation   of  the 

Gospel  v.  Wheeler,  196. 


Sockett  v.  Wray,  156. 
Sockey  v.  Winstock,  439. 
Sodowsky  v.   Sodowsky,  83. 
Soldanels  v.   Missouri  Pac.   Railway 

Co.,  364. 

Soley's  Estate,  In  re,  454. 
Sollinger's  Estate,  In  re,  301. 
Soltykoff,  In  re,  482. 
Somers  v.  Pumphrey,  533,  540. 
Somerville  v.  Somerville,  393. 
Sonsmith  v.  Pere  Marquette  R.  Co., 

632. 

Soper  v.  Igo,  Walker  Co.,  385. 
Soper  v.  Soper,  256. 
Sorenson  v.  Rasmussen,  316. 
Sorenson  v.  Sorenson,  45. 
Sorrels  v.  Matthews,  367. 
Sottomayer  v.  De  Barros,  3. 
Soule  v.  Bonney,  14. 
Soules  v.  Robinson,  534. 
Sousa  v.  Irome,  337. 
South  v.  Denniston,  376,  384. 
Southard  v.  Plummer,  202. 
South  Bend  Land  Co.  v.  Denio,  428. 
South  Covington  &  C.   St.  R.   Co.  v. 

Cleveland,  647. 
Southern  Bank  of  Fulton  v.  Nichols, 

134. 
Southern  Cotton  Oil  Co.  v.  Dukes,  478, 

512. 
Southern  Cotton  Oil  Co.  v.  Gladman, 

613. 
Southern  Cotton  Oil  Co.  v.  Skipper, 

613,  617. 

Southern  Indiana  R.  Co.  v.  Baker,  628. 
Southern  Marble  Co.  v.  Stegall,  398. 
Southern  Pac.  Co.  v.  Allen,  618. 
Southern  Pac.  Co.  v.  Dusablon,  73. 
Southern  Pac.  Co.  v.  Pillsbury,  638. 
Southern  R.  Co.  v.  Carr,  614. 
Southern  R,  Co.  v.  Elliott,  631. 
Southern  R.  Co.  v.  Flemister,  357,  370. 
Southern  R.  Co.  v.  King  Bros.  &  Co., 

354. 
Southern  R.  Co.  v.  Power  Fuel  Co., 

650. 

Southern  R.  Co.  v.  Reynolds,  656. 
Southern  R.  Co.  v.  Rutledge,  624. 
Southern  R.  Co.  v.  Smith,  631. 
Southmayd  v.  Insurance  Co.,  581. 
Southwick  v.  Southwick,  259. 
Spade  v.  State,  327. 
Spafford  v.  Spafford,  89. 
Spain  v.  Arnott,  589,  590. 
Spalding  v.  Rosa,  594. 
Spangler  v.  Vermillion,  167. 
Spangler  Co.  v.  Haupt,  526. 
Sparhawk  v.  Allen,  418. 
Sparkhawk  v.  Sparhawk,  292. 


730 


CASES  CITED 
[The  figures  refer  to  pages] 


Sparks  v.  Bodensick,  565. 

Sparks  v.  River  &  Harbor  Improve- 
ment Co.,  608. 

Sparks  v.  Ross,  62,  64. 

Sparks  v.  Sparks,  279. 

Sparman  v.  Keim,  511. 

Spath's  Estates,  In  re,  446, 

Spear  v.  Robinson,  27. 

Spears  v.  Burton,  64. 

Speck  v.  Phillips,  589. 

Speckmann  v.  Foote,  83. 

Speer  v.  Tinsley,  413. 

Speidel  v.  N.  Barstow  Co.,  567. 

Speier  v.  Opfer,  149,  201,  204. 

Speight  v.  Gaunt,  426. 

Speight  v.  Knight,  407,  454. 

Speight  v.  Oliviera,  371. 

Spencer  v.  Earl  of  Chesterfield,  452. 

Spencer  v.  Leland,  210. 

Spencer  v.  Lewis,  141. 

Spencer  v.  Spencer,  53,  327. 

Spencer  v.  State,  77. 

Sperry  v.  Fanning,  412. 

Sperry  v.  Haslam,  196. 

Spicer  v.  Holbrook,  544. 

Spiehs  v.  Insull,  638. 

Spitz,  Appeal  of,  160. 

Spokane  &  I.  E.  R.  Co.  v.  Wilson,  639. 

Spondre,  In  re,  33,  43,  68. 

Spondre's  Estate,  In  re,  288. 

Spoonheim  v.  Spoonheim,  555. 

Spotswood  v.  Barrow,  589,  593. 

Spradling  v.  Spradling,  233.  . 

Sprague  v.  Tyson,  191. 

Spreckels  v.  Spreckels,  155. 

Spring  v.  Kane,  439. 

Spring  v.  Woodworth,  411. 

Sprung  v.  Morton,  50. 

Spurgeon  v.  McElwain,  579. 

Spurlock  v.  Brown,  224,  225. 

Spur  lock  v.  Spurlock,  160. 

Squib  v.  Wyn,  138. 

Squier  v.  Hydliff,  483. 

Squire  v.  State,  64. 

Sroufe  v.  Sroufe,  444. 

Stack  v.  Padden,  207. 

Stackhouse  v.  Horton,  554. 

Stafford  v.  Roof,  492,  493,  518. 

Stalcup  v.  Stalcup;  147. 

Staley  v.  State,  63. 

Stammers  v.  Macomb,  175,  179. 

Standard  Oil  Co.  v.  Gilbert,  577. 

Standard  Oil  Co.   v.   Parkinson,  647, 
652. 

Standeford  v.  Devol,  133. 

Standen  v.  Pennsylvania  R.  Co.,  Ill, 
112,   127. 

Standidge  v.  Lynde,  590. 

Stanhope  v.  Shambow,  477,  481,  505, 
510. 


Stanley  v.  National  Union  Bank,  363. 
Stans  v.  Baitey,  53. 
Stansberry  v.   Stansberry,  223. 
Stansbury  v.  Bertron,  362. 
Stanton,  In  re,  33. 
Stanton  v.  Wetherwax,  553. 
Stanton  v.  Willson,  324,  327,  333. 
Stanwood  v.  Stanwood,  135. 
Stapelton  v.  Langstaff,  437. 
Staples,  Appeal  of,  182. 
Staples  v.  Wellington,  538. 
Stapleton  v.  Poynter,  352. 
Starbird  v.  Moore,  469. 
Starbuck  v.  Starbuck,  245,  291. 
Stark  v.  Gamble,  431,  444,  447. 
Stark  v.  Johnson,  121. 
Stark  v.  Kirchgraber,  186. 
Starke  v.  Storm's  Ex'r,  483. 
Starkweather  v.  Dunlap,  609. 
Starkweather   v.   Emerson   Mfg.   Co., 

582. 

Starr  v.  Pease,  292. 
Starr  v.  Watkins,  510. 
Starr  v.  Wright,  478. 
Starrett  v.  Douglass,  559. 
Starrett  v.  Wynn.  158. 
State  v.  Aaron,  530. 
State  v.  Adams,  530,  558. 
State  v.  Alexander,  551. 
State  v.  Alford,  340,  342. 
State  v.  Anderson,  462. 
State  v.   Armington,   245,   288,  290. 
State  v.  Baird,  345. 
State  v.  Baker,  90. 
State  v.  Baldwin,  352. 
State  v.  Baltimore  &  O.  R,  Co.,  356. 
State  v.  Bank,  41. 
State  v.  Banks,  93,  94. 
State  v.  Barney,  345. 
State  r.  Barrett,  3."3.  356. 
State  v.  Barton,  530. 
State  v.  Beers,  328. 
State  v.  Bell,  90,  91. 
State  v.  Beslin,  345. 
State  v.  Bitman,  340. 
State  v.  Bittick,  2,  42,  44. 
State  v.  Block,  328. 
State  v.  Blodgett,  558. 
State  v.   Bostick,   530. 
State  v.  Brady,  31. 
State  v.  Branch,  444. 
State  v.  Bratton,  350, 
State  v.  Brown,  457. 
State    v.  Broyer,  77. 
State  v.  Bryant.  463. 
State  v.  Bunce,  520. 
State  v.- Burton,  340. 
State  v.   Cagle,   463,   465. 
State  v.  Clark,  412.  415,  441, 
State  v.  Clark,  461. 


CASES  CITED 
[The  figures  refer  to  pages] 


731 


State  v.  Clausen,  636. 

State  v.  Cleaves,  92. 

State  v.  Cone,  23,  24. 

State  v.  Cook,  411. 

State  v.  Cox,  459. 

State  v.  Creamer,  636. 

State  v.  Davis,  14,  529,  530. 

State  v.  Day,  39. 

State  v.  Deck,  462. 

State  v.  De  La  Foret,  563. 

State  v.    District    Court    of    Ramsey 

County,  640. 
State  v.   District  Court  of  Hennepin 

County,  635,  641. 
State  v.  District  Court  of  St.  Louis 

County,  639,  640. 
State  v.  District  Court  of  Watonwam 

County,   639. 
State  v.  Dowell,  94. 
State  v.  Duket,  292. 
State  v.  Duncan,  290. 
State  v.  Dunn,  463,  464. 
State  v.  Ebarbo,  464. 
State  v.  Eisen,  464. 
State  v.  Engelke,  454. 
State  v.  English,  14. 
State  v.  Evans,  307. 
State  v.  Fenn,  35,  69,  72, 
State  v.  Finley,  94. 
State  v.  Fisk,  529,  530. 
State  v.  Flint,  345. 
State  v.  Fowler,  530. 
State  v.  Foy,  430,  445. 
State  v.  Freudenberg,  464. 
State  v.  Fry,  292. 
State  v.  Fuchs,  77. 
State  v.  Fulton,  94. 
State  v.  Gill,  90. 
Sta£e  v.  Gilmore,  446. 
State  v.  Gipson,  328. 
State  v.  Goin,  530. 
State  v.  Guild,  530. 
State  v.  Guthridge,  557. 
State  v.  Hand,  70,  72. 
State  v.  Hansbrough,  45. 
State  v.  Harrison,  551. 
State  v.  Harvey,  90. 
State  v.  Herman,  294. 
State  v.  Hill,  81,  82. 
State  v.  Hodgskins,  41. 
State  v.  Holden,  575. 
State  v.   Hooper,  31. 
State  v.  Houston,  90,  91,  403. 
State  v.  Howard,  464. 
State  v.  Ikey's  Estate,  537. 
State  v.  Industrial  Commission,  637. 
State  v.  Isenhuth,  462,  463. 
State  v.  Johnson,  462,  559. 


State  v.  Jones,  340,  341,  342,  443,  458, 

531,  550. 

State  v.  Kean,  62. 
State  v.  Kelley,  316,  453. 
State  v.  Kelly,  90,  91. 
State  v.  Kennedy,  49,  71. 
State  v.  King,  348. 
State  v.  Klasen,  461,  462. 
State  v.  Kluseman,  530. 
State  v.  Langford,  329. 
State  v.  Lankford,  94. 
State  v.  Lawrence,  536. 
State  v.  Leslie,  444. 
State  v.   Lewis,  550. 
State  v.  Libbey,  352. 
State  v.  Livingston  Concrete  Bldg.  & 

Mfg.  Co.,  574. 
State  v.  Lowell,  76,  360. 
State  v.  McCants,  559. 
State  v.  McDonald,  307. 
State  v.  McGilvery,  38. 
State  v.  McPherson,  81. 
State  v.  Martin,  410. 
State  v.  Miller,  444. 
State  v.  Morrison,  426. 
State  v.  Morse,  246,  247. 
State  v.  Mushied,  307. 
State  v.  Nakashima,  27. 
State  v.  Neibekier,  562. 
State  v.  Newman,  176,  177. 
State  v.  Nichols,  307. 
State  v.  Nowell,  92. 
State  v.   Oliver,   94. 
State  v.  Paine,  348,  350. 
State  v.   Parker,  23. 
State  v.  Peabody,  328. 
State  v.  Pendergrass,  342. 
State  v.  Porter,  550. 
State  v.  Postal  Telegraph  &  Cable  Co., 

637. 

State  v.  Potter,  91. 
State  v.  Pratt,  268. 
State  v.  Pugh,  530. 
State  v.  Rhodes,  SO. 
State  v.  Richardson,  345,  346,  446. 
State  v.  Richie,  470. 
State  v.  Riddle,  549,  551. 
State  v.  Robinson,  90,  205,  558. 
State  v.  Rose,  462. 
State  v.  Rosenfield,  462. 
State  v.  Roswell,  27. 
State   v.    Rucker,  306. 
State  v.  St.  John,  49. 
State  v.  Sanner,  328. 
State  v.  Sartwell,  35. 
State  v.  Schnables,  462. 
State  v.   Schweitzer,  77. 
State  v.  Servier,  534. 


732 


CASES  CITED 
[The  figures  refer  to  pages] 


State  v.  Shackleford,  458. 

State  v.  Shattuck,  35,  68,  72,  74. 

State  v.  Shaw,  295,  296,  298. 

State  v.   Shee,  91. 

State  v.  Shorey,  462. 

State  v.  Shouse,  329. 

State  v.  Slevln,  458. 

State  v.   Smith,   28,  353,  566. 

State  v.  Snell,  551. 

State  v.  Sparegrove,  328. 

State  v.  Stebbins,  558. 

State  v.  Stewart,  443. 

State  v.  Stigall,  347. 

State  v.  Superior  Court,  83. 

State  v.  Ta-cha-na-tah,  55. 

State  v.  Thomas,  565. 

State  v.  Thompson,  43. 

State  v.  Thornton,  329. 

State  v.  Thrailkill,  530. 

State  v.  Tice,  530. 

State  v.  Tillinghast,  40. 

State  v.  Toole,  94. 

State  v.  Truitt,  558. 

State  v.  Vineyard,  530. 

State  v.  Walker,  38,  42. 

State  v.  Weatherby,  72. 

State  v.  Weatherwax,  478. 

State  v.  Welch,  558. 

State  v.  Westmoreland,  34, 

State  v.  Wilson,  41,  294. 

State  v.  Witham,  77,  83. 

State  v.  Worthingham,  7,  38,  42,  44,  49, 

51. 

State  v.  Yates,  558. 
State  v.  Yoder,  35,  57. 
State  v.  Yturria,  315,  317. 
State  v.  Zichfeld,  37,  38,  39,  43. 
State  Bank  v.  McCoy,  556. 
State  Board  of  Control  v.  Buckstegge, 

462. 
State  Commission  In  Lunacy  v.   El- 

dridge,  540. 

State  ex  rel.  Baker  v.  Bird,  400,  453. 
State  ex  rel.  Bush  v.  Traham,  351. 
State  ex  rel.  Cave  v.  Tincher,  344,  345, 

463. 

State  ex  rel.  Deckard  v.  Macom,  326. 
State  ex  rel.  Gardiner  v.  Dickman,  534. 
State  ex  rel.  Finger  v.  Reynolds,  405. 
State  ex  rel.  Taubman  v.  Davis,  75. 
State  ex  rel.  Young  v.  Cook,  403,  404. 
State  Fair  Ass'n  v.  Terry,  451. 
Stauffer  v.  Morgan,  153,  154. 
Staver  Carriage  Co.  v.  Beaudry,  84,  87. 
Stayte  v.  Farquharson,  16. 
Stebbins  v.  Waterhouse,  601,  602,  603. 
Stecher  Cooperage  Works  v.  Steadman, 

624. 
Steel  v.  Steel,  359,  388. 


Steele,  In  re,  456. 

Steele  v.  Atlantic  Coast  Line  R.  Co., 

621. 

Steele  v.  Hohenadel,  345. 
Steele  v.  Leyhan,  175. 
Steele  v.  Poe,  495. 
Steele  v.  Reese,  458. 
Steele  v.  Steele,  12,  259. 
Steen  v.  Railroad  Co.,  619. 
Stegall   v.   Stegall,   294. 
Steiler  v.  Hart,  613. 
Steimer  v.  Steimer,  16. 
Stein  v.  Stein,  32. 
Stein's  Adm'r  y.  Stein,  301. 
Steinberger  v.  Young,  205. 
Steinfield  v.  Glrrard,  171,  177. 
Stem,  Appeal  of,  429. 
Stephens  v.  James,  407. 
Stephens  v.   Stephens,  223,  224,  337, 

525. 

Stephens  v.  Trueman,  220. 
Stephenson  v.  Duncan,  607. 
Sterling  v.   Arnold,  423. 
Sterling  Emery  Wheel  Co.  v.  Magee. 

593. 

Sterns  v.  Weathers,  197. 
Sterry  v.  Arden,  219,  221. 
Stertz  v.  Industrial  Ins.  Commission. 

639. 

Stetz  v.  F.  Mayer  Boot  &  Shoe  Co.,  639. 
Stevens  v.  Armstrong,  654. 
Stevens  v.  Crane,  597. 
Stevens  v.  Cunningham,  126. 
Stevens  v.  Hush,  83,  169. 
Stevens  v.  Meserve,  433,  435. 
Stevens  v.  Stevens,  262. 
Stevens  v.  Story,  175. 
Stevenson  v.  Gray,  38,  39,  67,  69. 
Stevenson  v.  Morris,  109. 
Stevenson  v.  Stevenson,  13. 
Stevenson's  Heirs  v.  McReary,  50. 
Steves  v.  Smith,  44. 
Stewart  v.  Bailey,  439. 
Stewart  v.  Crump,  413. 
Stewart  v.  Howe,  521. 
Stewart  v.  Lewis,  331. 
Stewart  v.  Parr,  469. 
Stewart  v.  Stewart,  248,  253,  259. 
Stewart  v.  Swartz,  337. 
Stewart  v.  Weiser  Lumber  Co.,  203. 
Sticken  v.  Schmidt,  211. 
Stifel's  Union   Brewing  Co.  T.  Saxy, 

128,  147,  148. 
Stiles  v.  Hawkins,  152. 
Stiles  v.  Stiles,  260. 
Stilley  v.  Folger,  217. 
Stilphen  v.  Stilphen,  197. 
Stilwell  v.  Mills,  458. 
Stinson  v.  Leary,  450. 


CASES  CITED 
[The  figures  refer  to  pages] 


733 


Stinson  v.  Pickering,  469. 

Stittgen,  In  re,  461. 

Stitzel  v.  Farley,  543. 

Stocket  v.  Holliday,  231. 

Stockstill  v.  Bart,  151. 

Stoffal  v.  Jarvis,  147. 

Stoffer  v.  Stoffer,  258. 

Stoker  v.  Gowans,  464. 

Stokes  v.  Anderson,  240,  276. 

Stokes  v.  Brown,  498. 

Stokes  v.  Payne,  437. 

Stokes  v.  Stokes,  32,  59,  264. 

Stoltz  v.  Doering,  45,  52. 

Stone  v.  Bancroft,  602. 

Stone  v.  Carr,  323. 

Stone  v.  Damon,  554. 

Stone  v.  Dennison,  482. 

Stone  v.  Duffy,  244,  327,  409. 

Stone  v.  Hills,  647. 

Stone  v.  Pulsipher,  356. 

Stone  v.  State,  462. 

Stone  v.  Stone,  392. 

Stone  v.  Tyack,  182. 

Stone  v.  Wilbern,  538. 

Stone  v.  Wolfe,  494. 

Stoneburner  v.  Stoneburner,  282,  284. 

Stone-Webster  Engineering  Corpora- 
tion v.  Collins,  611. 

Stork  v.  Charles  Stolpher  Cooperage 
Co.,  609. 

Storms  v.  Storms,  286. 

Storrs  v.  Utica,  655. 

Story  v.  Downey,  104,  109. 

Story  &  Clark  Piano  Co.  v.  Davy,  509, 
516. 

Stotts  v.  Leonhard,  507. 

Stoudt  v.  Shepherd,  382. 

Stoughton'e   Appeal,    436. 

Stout  v.  Kansas  City  Terminal  R.  Co., 
112. 

Stoutenborough  v.  Rammel,  85,  172, 
173. 

Stovall  v.  Johnson,  364. 

Stover  v.  Boswell's  Heir,  307,  308. 

Stowe  v.  Heywood,  385. 

Stowers  v.  Hollis,  479. 

Straight  v.  McKay,  86,  87. 

Strain  v.  Hinds,  475,  505. 

Strang  v.  People,  94. 

Stratton  v.  Wilson,  224. 

Straus  v.  Straus,  254. 

Strauss  v.  Canty,  155. 

Strauss  v.  Meertief,  586,  597,  598. 

Strauss  v.   Strauss,  290. 

Strawbridge  v.  Wolff,  83. 

Street  R.  Co.  v.  Bolton,  623. 

Strode  v.  Magowan's  Heirs,  62,  296. 

Stroebe  v.  Fehl,  142. 

Strohl  v.  Levan,  335, 


Strohm  v.  People,  462. 

Strom  v.  PostaL  Telegraph  Cable  Co., 

638. 

Strom  v.  Strom,  105. 
Strong  v.  Beroujon,  430. 
Strong  v.  Foote,  484. 
Strong  v.  Moe,  415. 
Strong  v.  Railroad  Co.,  620. 
Stroup  v.  State,  450. 
Strouse  v.  Leipf,  104. 
Stuart  v.  Bute,  442. 
Studabaker  v.  Faylor,  541. 
Studebaker    Bros.    Mfg.    Co.    v.    De 

Moss,  326. 

Studwell  v.  Shapter,  490,  527. 
Stull's  Estate,  In  re,  70,  72. 
Stumm  v.  Hummel,  122. 
Sturges  &  Burn  Mfg.  Co.  v.  Beaucamp, 

462. 

Sturgis  v.  Sturgis,  39,  69,  70,  71. 
Sturm  v.  Sturm,  81. 
Sturtevant  v.   Starin,  174. 
Sturtevant  v.  State,  347. 
Stutz    v.    Armour,    629i, 
Sudler  v.  Sudler,  407. 
Sullivan,  Case  of,  404. 
Sullivan  v.  Flynn,  542. 
Sullivan  v.  Grand  Lodge,  K.  P.,  64. 
Sullivan  v.  Horgan,  579. 
Sullivan  v.  Railroad  Co.,  619,  622,  623. 
Sullivan  v.  Sullivan,  277. 
Sultan  v.  Misrahi,  176. 
Sultzbach  v.  Smith,  336. 
Sumey  v.  Craig  Mountain  Lumber  Co., 

575,  634. 

Summers  v.  Phenix  Ins.  Co.,  583,  584. 
Summers  v.  Summers,  264. 
Summerville  v.  Summerville,  42. 
Summs  v.  Snare  &  Triest  Co.,  301. 
Sumner  v.  Nevin,  602. 
Sumner  v.  Sumner,  239,  240. 
Sunderland,  In  re,  320. 
Sunter  v.  Sunter,  419. 
Superior  Coal  &  Mining  Co.  v.  Kaiser, 

617,  618. 

Support  of  Minor  Children,  In  re,  327. 
Supreme  Tent  v.  McAllister,  42. 
Surber  v.   Surber,  261. 
Sussdine,  Case  of,  641. 
Sutcliffe  v.  Atlantic  Mills,  579. 
Suter  v.  Suter,  50. 
Sutliff  v.  Forgey,  564. 
Suttle  v.  Choctaw,  O.  &  G.  R.  Co.,  619. 
Sutton  v.  Chtewynd,  220. 
Sutton  v.  Des  Moines  Bakery  Co.,  610. 
Sutton  v.  Heinzle,  487. 
Sutton  v..  Huffman,  370,  383. 
Sutton  v.  Warren,  68,  69. 
Suydam  v.  Suydam,  266. 


734 


CASES  CITED 
[The  figures  refer  to  pages] 


Svanda  v.  Svanda,  270. 

Svendsen's  Estate,  In  re,  38,  39,  47, 

48,  53. 

Svenson  v.  Svenson,  11. 
Swain  v.  Duane,  186. 
Swan  v.  Dent,  456. 
Swan  v.  State,  559. 
Swan  v.  Walden,  149. 
Swarens  v.  Swarens,  345. 
Swartwood  v.  Chance,  538. 
Swartwout  v.  Oaks,  458. 
Swartwout  v.  Swartwout,  452. 
Swasey  v.  Vanderheyden's  Adm'r.,  482. 
Sweeney  v.  Taylor  Bros.,  150,  155. 
Sweet  v.  Coal  Co.,  610. 
Sweet  v.  Crane,  354. 
Sweet  v.  Sweet,  453. 
Sweetser  Pembroke  &  Co.,  In  re,  595. 
Swett  v.  Penrice,  175,  179. 
Swick  v.  Coleman,  317. 
Swiercz  v.  Illinois  Steel  Co.,  613,  614. 
Swift,  In  re,  453. 
Swift  v.  Bennett,  482. 
Swift  v.  Luce,  203,  208. 
Swift  &  Co.  v.  Johnson,  361. 
Swindall  v.  Swindall,  431. 
Swingle  v.  Swingle,  216. 
Swisher  v.  McWhinney,  459. 
Switchmen's  Union  of  North  America 

v.  Gillerman,  39. 
Switzer  v.  Switzer,  240. 
Swoboda  v.  Ward,  609. 
Swope  v.  Chambers,  445. 
Sword  v.  Keith,  359. 
Swygart  v.  Willard,  560. 
Syck  v.  Hellier,  492,  501. 
Sykes  v.  Halstead,  265. 
Sykes  v.  Lawlor,  374. 
Sylvis  v.  Sylvis,  255. 
Symons  v.  Road  Directors  for  Allegany 

County,  654. 
Szlauzis  v.  Szlauzis,  35. 


T.  v.  D.,  30. 

T.  v.  M.  L.  R.,  30. 

Tabb  v.  Archer,  215,  216,  219,  220,  225. 

Taber  v.  Taber,  277. 

Taft  v.  Seargeant,  505. 

Tagg  v.  McGeorge,  613. 

Taggard  v.  Innes,  546. 

Taglinette  v.  Sydney  Worsted  Co.,  636, 

639. 

Tait  v.  Tait,  12. 
Talbot  v.  Bowen,  467. 
Talley  v.  Talley,  286. 
Tallmadge  v.  Grannis,  141. 
Tallman  v.  Jones,  163,  164, 


Tank's  Guardianship,  In  re,  404. 

Tanner  v.  Skinner,  330. 

Tanner's  Estate,  In  re,  419. 

Tanton  v.  Tanton,  63. 

Tarbell  v.  Tarbell,  216. 

Tarrant  v.  Tarrant,  268. 

Tartt  v.  Negus,  8. 

Tasker  v.  Shepherd,  594. 

Tasker  v.  Stanley,  113,  115. 

Tatterson  v.  Manufacturing  Co.,  584. 

Tawney  v.  Crowther,  225,  226. 

Taylor,  Ex  parte,  514. 

Taylor,  In  re,  405. 

Taylor  v.  Albion  Lumber  Co.,  566,  567. 

Taylor  v.  Bemiss,  428,  430. 

Taylor  v.  Brown,  420. 

Taylor  v.  Calvert,  419. 

Taylor  v.  Carpenter,  566. 

Taylor  v.  Daniel,  380. 

Taylor  v.  Green,  99. 

Taylor  v.  Hemingray,  457. 

Taylor  v.  Hite,  426,  441. 

Taylor  v.  Jeter,  393. 

Taylor  v.  Kellogg,  426,  430, 

Taylor  v.  Laird,  575,  576. 

Taylor  v.  Leonard,  466. 

Taylor  v.  Meads,  186,  188. 

Taylor  v.  Mechanics'  Sav.  Bank,  855. 

Taylor  v.  Minigus,  164. 

Taylor  v.  Paterson,  605. 

Taylor  v.  Philips,  437. 

Taylor  v.  Railway  Co.,'  629. 

Taylor  v.  Rountree,  184. 

Taylor  v.  Staples,  388. 

Taylor  v.  Stewart,  336. 

Taylor  v.  Superior  Court,  429,  543. 

Taylor  v.  Swett,  50. 

Taylor  v.  Taylor,  32,  48,  49,  56,  82, 

84,  225,  258,  262,  264,  346,  389,  391. 
Taylor  v.  Wands,  164. 
Taylor  v.  White,  56. 
Taylor  Iron  &   Steel  Co.  v.  Nichols, 

603. 

Teagarden  v.  McLaughlin,  335,  336. 
Tebbs  v.  Carpenter,  428. 
Teckenbrock  v.  McLaughlin,  202. 
Tedder  v.  Tedder,  49. 
Tefft  v.  Tefft,  32,  57,  60. 
Teipel  v.  Vanderweier,  420. 
Telinko  v.  Pittsburg  Coal  Co.,  615. 
Temple  v.  State,  161. 
Tennessee  Cent.  R.  Co.  v.  Doak,  367, 

369. 

Tenuey  v.  Evans,  412. 
Terhune^v.  Com.,  558. 
Terkelsen  v.  Petersen,  240. 
Terrky  v.  Terrky,  23. 
Terry  v.  Hutchinson,  370,  372. 
Terry  v.  Johnson,  345. 


CASES  CITED 
[The  figures  refer  to  pages] 


735 


Teter  v.  Teter,  38,  39,  42,  44,  49,  51. 
Texarkana    Lumber   Co.    v.    Lennard, 

596. 
Texarkana   Telephone   Co.   v.    Burge, 

110. 

Texas  &  P.  R.  Co.  v.  Nichols,  632. 
Texas  &  P.  R.  Co.  v.  Rogers,  619. 
T.  G.  Northwall  Co.  v.  Osgood,  205. 
Thacher  v.  Dinsmore,  412. 
Thacher  v.  Phinney,  142. 
Thacker  v.  Henderson,  438. 
Thacker  Coal  &  Coke  Co.  v.  Burke, 

644. 

Thackrah  v.  Haas,  556. 
Thaw,  In  re,  535. 
Thaw  v.  Ritchie,  439. 
Thayer  v.  Denver  &  R.  G.  R.  Co.,  607. 
Thayer  v.  Railroad  Co.,  628. 
Thayer  v.  White,  332. 
Thewlis'  Estate,  In  re,  62. 
Thiesing  v.  Thiesing,  351. 
Thigpen  v.  Thigpen,  309. 
Thing  v.  Libbey,  504. 
Third  Nat.  Bank  v.  Poe,  233. 
Third  Nat.  Bank  v.  Tierney,  211. 
Thomas,  Succession  of,  32,  63,  64. 
Thomas  v.  Bennett,  430. 
Thomas  v.  Brown,  240. 
Thomas  v.  Burrus,  455. 
Thomas  v.  Carter,  553. 
Thomas  v.  Chicago,  129,  142. 
Thomas  v.  Dike,  517. 
Thomas  v.  Hatch,  584. 
Thomas  v.  Hornbrook,  232. 
Thomas  v.  James,  35,  44,  45,  46,  63. 
Thomas  v.  Roberts,  404. 
Thomas  v.  Sheppard,  140. 
Thomas  v.  State,  551,  558. 
Thomas  v.  Thomas,  33,  62,  93,  254,  279, 

327,  400. 

Thomasson  v.  Boyd,  499,  501. 
Thomond  v.  Suffolk,  183,  184. 
Thompson  v.  Boardman,  436. 
Thompson  v.  Brown,  171. 
Thompson  v.  Havelock,  592. 
Thompson  v.  Howard,  385. 
Thompson  v.  Lay,  504. 
Thompson  v.  Metropolitan  St.  R.  Co., 

108. 

Thompson  v.  Millar,  383. 
Thompson  v.  Minnich,  162,  205. 
Thompson  v.  Ross,  371. 
Thompson  v.  Thompson,  10,  40,  68, 106, 

250,  259,  291. 
Thompson  v.  United  Laboratories  Co., 

368. 

Thompson  v.  Wilkinson,  161. 
Thormaehlen  v.  Kaeppel,  528. 
Thorn  v.  Anderson,  200. 


Thornburn  v.  Doscher,  145. 

Thorndike  v.  Hinckley,  455. 

Thome  v.  Farrar,  14. 

Thome  v.  Kathan,  177. 

Thome's  Will,  In  re,  311. 

Thornton  v.  Grand  Trunk-Milwaukee 
Car  Ferry  Co.,  638. 

Thorp  v.  Thorp,  67,  70,  72. 

Thorpe  v.  Shapleigh,  176. 

Thrall  Hospital  v.  Caren,  180. 

Threewits  v.  Threewits,  279. 

Thrift  v.  Payne,  591. 

Thrupp  v.  Fielder,  498. 

Thum  Co.  v.  Floczynski,  603. 

Thurber  Brick  Co.  v.  Matthews,  626. 

Thurlow  v.  Gilmore,  498. 

Thurlow  v.  Massachusetts,  568. 

Thurman  v.  State,  550. 

Thurston  v.  Thurston,  289. 

Thurston  v.  Tubbs,  468. 

Thyng  v.  Railroad  Co.,  632. 

Thyssen  v.  Davenport  Ice  &  Cold  Stor- 
age Co.,  652. 

Tibbetts  v.  Gerrish,  498. 

Tiemeyer  v.  Turnquist,  209. 

Tiernan  v.  Binns,  223,  224. 

Tierney  v.  Railway  Co.,  626,  627. 

Tiff  t  v.  Tiff  t,  335. 

Tigert  v.  Wells,  309. 

Tillery  v.  Land,  167,  475,  515. 

Tilley  v.  Harrison,  315. 

Tilley  v.  Rockingham  County  Light  & 
Power  Co.,  616,  625. 

Tillman  v.  Shackleton,  163,  207. 

Tillotson  v.  Currin,  381. 

Tillotson  v.  McCrillis,  359. 

Tilton  v.  Tilton,  217,  223,  268,  279. 

Timberlake  v.  Thayer,  604. 

Timerson  v.  Timerson,  278. 

Times-Democrat  Pub.  Co.  v.  Mozee, 
109. 

Timmann  v.  Timmann,  296. 

Timmings  v.  Timmings,  275,  279. 

Tipping  v.  Tipping,  131. 

Tipton  v.  Tipton,  259,  263. 

Titcomb  v.  Vantyle,  538. 

Title  Guaranty  &  Surety  Co.  v.  Slink- 
er,  444. 

Title  Ins.  &  Trust  Co.  v.  Ingersoll,  81. 

Tittlebaum  v.  Boehmcke,  384. 

Tittman  v.  Green,  445. 

Tobey  v.  Wood,  489,  499,  500,  501,  504. 

Tobin  v.  Bruce,  392. 

Tobin  v.  Spann,  466,  516. 

Todd  v.  Clapp,  489,  501,  504. 

Todd  v.  Lee,  212,  213. 

Todd  v.  Stoakes,  178. 

Todd  v.  Todd,  258,  272,  276. 

Todd  v.  Weber,  306. 


736 


CASES  CITED 
[The  figures  refer  to  pages] 


Toledo,  W.  &  W.  R.  Co.  v.  Grable,  521, 

523. 
Toledo,  W.  &  W.  R.  Co.  v.  Harmon, 

651. 
Toledo,  W.  &  W.  R.  Co.  v.  Ingraham, 

607. 
Tolor  v.  Marion  County  Lumber  Co., 

506. 

Toman,  Estate  of,  418. 
Tomczek  v.  Wieser,  475,  489,  492,  507. 
Toogood  v.  Spyring,  601. 
Topping  v.  Windley,  446. 
Torre  v.  Summers,  121. 
Torrence's  Estate,  In  re,  8. 
Torrens  v.  Campbell,  359. 
Torry  v.  Black,  430,  436. 
Touchy  v.  Gulf  Land  Co.,  438, 
Tourney  v.  Sinclair,  241. 
Towery  v.  McGaw,  81. 
Towle  v.  Dresser,  475,  493,  510. 
Town  of  Canaan  v.  Avery,  298. 
Town   of   Craftsbury   v.    Greensboro, 

360. 

Town  of  Hudson  v.  Hills,  305,  306. 
Town  of  Londonderry  v.  Chester,  38, 

39,  44. 

Town  of  Mountholly  v.  Andover,  57. 
Town  of  Northfleld  v.  Brookfleld,  360. 
Town  of  Poultney  v.  Glover,  361. 
Town  of  Rockingham  v.  Mount  Holly, 

301. 
Town    of     Roxbury    v.    Bridgwater, 

62,  63. 

Towne  v.  Wiley,  527. 
Townsend  v.  Huntzinger,  159,  161,  203. 
Townsend  v.  Kendall,  409,  417. 
Townsend  v.  Langles,  617. 
Townsend  v.  Tallant,  445. 
Townsend  v.  Townsend,  264.. 
Townsley  v.  Chapin,  167. 
Townsley  v.  Moore,  580. 
Tracy  v.  Keith,  157. 
Tracy  v.  Roberts,  439,  440. 
Trader  v.  Jarvis,  479. 
Trader  v.  Lowe,  420,  504. 
Trammell  v.  Trammell,  518. 
Tramwell  v.  Vaughan,  3. 
Trapnell  v.  Conklyn,  199,  200,  359,  365. 
Trask  v.  Patterson,  141. 
Trask  v.  Trask,  10. 
Travers  v.  Hartmann,  369. 
Travers  v.  Reinhardt,  38,  42,  68. 
Travis  v.  Sitz,  186,  195. 
Travis  v.  State,  462. 
Trayer  v.  Setzer,  301,  306. 
Treasurer  of  Insane  Hospital  v.  Bel- 
grade, 534. 

Trefflnger  v.  M.  Groh's  Sons,  577. 
Trenchard  v.  Trenchard,  243,  250. 


Trevor  v.  Trevor,  219. 

Trickey  v.  Clark,  622. 

Trieber  v.  Stover,  163. 

Trigg  v.  Trigg,  284. 

Trimble  v.  Dodd,  331. 

Trimble  v.  Spiller,  B68,  375. 

Trinity  County  Lumber  Co.  v.  Conner, 

356. 

Tritt  v.  Colwell,  134. 
Tritt's  Adm'r  v.  Colwell's  Adm'r,  131, 

132,  134. 

Trotter  v.  Trotter,  82. 
Trotter  Bros.  v.  Downs,  212. 
Trow  v.  Thomas,  374. 
Troy  Fertilizer  Co.  v.  Logan,  597. 
True  v.  Ranney,  18,  60,  67,  69. 
Trueblood  v.  Trueblood,  473. 
Trueman  v.  Hurst,  482. 
Truitt  v.  Battle  Creek,  147. 
Trust  Co.  v.  Sedgwick,  99. 
Trustee  of  Elizabeth  Speer'a  Memorial 

Hospital    v.    Makibben's   Guardian, 

445. 

Tubb  v.  Harrison,  325. 
Tucke  v.  Buchholz,  449. 
Tucker   v.   Gordon,   133. 
Tucker  v.  McKee,  411. 
Tucker  v.  Moreland,  473,  479,  502,  505, 

506,  511. 

Tucker  v.  Preston,  576,  605. 
Tucker  v.  Tucker's  Adm'r,  196. 
Tudhope  v.  Potts,  456. 
Tuller  v.  Voght,  649. 
Tullis  v.  Hassell,  590. 
Tully,  In  re,  403,  404,  405. 
Tune  v.  Cooper,  128. 
Tunison  v.  Chamblin,  489,  506. 
Tupper  v.  Cadwell,  486,  487. 
Turkey  Foot  Lumber  Co.  v.  Wilson, 

609. 

Turman  Cooperage  Col  v.  Shelton,  468. 
Turnbull  v.  Turnbull,  277. 
Turner,  In  re,  404,  463,  464. 
Turner  v.  Buchsbaum,  609. 
Turner  v.  Davenport,  126,  127,  200. 
Turner  v.  Estes,  115,  117. 
Turner  v.  Flagg,  412,  456. 
Turner  v.  Gaither,  484,  504. 
Turner  v.  Heavrin,  121,  123, 
Turner  v.  Mason,  590. 
Turner  v.  Meyers,  19. 
Turner  v.  Rusk,  544. 
Turner  v.  Smithers,  572. 
Turner  v.  Stewart,  466,  491, 
Turner  v.  Street,  423. 
Turner  v.  Trisby,  481. 
Turner  v.  Turner,  348,  389. 
Turner  v.  Williams,  63. 
Turney  v.  Mobile  &  O.  R.  Co.,  513. 


CASES  CITED 
[The  figures  refer  to  pages] 


737 


Turtle  v.  Muncy,  125,  130. 

Turton  v.  Turton,  134. 

Tuttle  v.  Hoag,  163. 

Tuttle  v.   Shutts,  160. 

Tyler,  In  re,  436. 

Tyler  v.  Andrews,  28,  59,  67. 

Tyler  v.  Gallop's  Estate,  501,  518. 

Tyler  v.  Tyler,  70. 

Tyrrell  v.  Hope,  187. 

u 

Udell  v.  Kenney,  134,  135,  136. 
Uecker  v.  Koehm,  503,  507. 
Uecker  v.  Zuercher,  535. 
Uhlmann  v.  Uhlmann,  251. 
Ulrich  v.  Arnold,  576,  577. 
Ulrich  v.  Hower,  589. 
Ultz  v.  Upham,  316. 
Umbenhour  v.  Umbenhour,  46. 
Umlauf  v.  Umlauf,  351. 
Unbenhower  v.  Labus,  43. 
(Jnderhill  v.  Mayer,  81,  82,  S3,  210. 
Underwood  v.  Deckard,  466. 
Unger  v.  Mellinger,  218,  235. 
Union  Cotton  Mills  v.  Harris,  627. 
Union  Pac.  R.  Co.  v.  Erickson,  632. 
Union  Pac.  B.  Co.  v.  Fort,  619. 
Union  Pac.  R.  Co.  v.  McDonald,  521, 

522. 
Union  Savings  &  Trust  Co.  v.   Man- 

ney,  152. 
Union  State  Bank  of  Harvard  v.  Mc- 

Kelvie,  161. 
United  Oil  &  Refining  Co.  v.  Grey,  588, 

592. 

U.  S.  v.  Bainbridge,  356,  478. 
U.  S.  v.  Baltimore  &  O.  R.  Co.,  575. 
U.  S.  v.  Behrendsohn,  463,  529. 
U.  S.  v.  Bell,  561. 
U.  S.  v.  Blakeney,  478. 
U.  S.  v.  Chicago,  M.  &  P.  S.  Ry.  Co., 

602. 

U.  S.  v.  Denver  &  R.  G.  R.  Co.,  602. 
U.  S.  v.  De  Walt,  269. 
U.  S.  v.  Drew,  557. 
U.  S.  v.  Evangelista,  50. 
U.  S.  v.  Green,  347,  348,  350. 
U.  S.  v.  Hall,  394. 
U.  S.  v.  Lee  Sa  Kee,  42. 
U.  S.  v.  McGlue,  558. 
U.  S.  v.  Terry,  92. 
U.  S.  v.  Thierichens,  562. 
U.  S.  v.  Villafuerte,  50. 
U.  S.  v.  Wright,  461,  521. 
U.  S.  Cement  Co.  v.  Cooper,  610. 
U.  S.  Fidelity  &  Guaranty  Co.  v.  Hall, 

330. 

TIFF.P.&  D.REL.(3o  ED.)— 47 


U.  S.  Fidelity  &  Guaranty  Co.  v.  Han- 
sen,  458. 

U.  S.  Fidelity  &  Guaranty  Co.  v.  Lee, 
199. 

U.  S.  Fidelity  &  Guaranty  Co.  v.  State, 
428. 

U.  S.  Fidelity  &  Guaranty  Co.  v.  Wick- 
line,  636. 

U.  S.  Inv.  Corp.  v.  Ulrickson,  467. 

U.  S.  Mortgage  Co.  v.  Sperry,  437. 

U  S.  Rolling  Stock  Co.  v.  Chadwick, 
617, 

U.  S.  Trust  Co.  v.  Hoyt,  316. 

U.  S.  Wind  Engine  &  Pump  Co.  v. 
Butcher,  618. 

Unity  Joint-Stock  Mut.  Banking  Ass'n, 
528. 

University  of  Michigan  v.  McGuckin,  8, 
42,  51,  52. 

University  of  North  Carolina  v.  Mark- 
ham,  309. 

Unsoeld  v.  Unsoeld,  269. 

Uocker  v.  Koehn,  507. 

Uphoff  v.  McCormick,  337. 

Upstone  v.   People,  558. 

Usher  v.  Western  Union  Tel.  Co.,  647. 

Utah  Consol.  Mining  Co.  v.  Paxton, 
620. 

Utterton  v.  Tewsh,  277. 

Uy  Soo  Liim  v.  Tan  Unchuan,  501. 


Vaiden  v.  Stubblefield's  Ex'r,  421. 

Vail  v.  Meyer,  209,  212. 

Valentini  v..  Canali,  514. 

Vallance  v.  Bausch,  194. 

Vallandingham  v.  Johnson,  506. 

Valleau  v.  Valleau,  248. 

Vallery  v.  State,  601. 

Valois  v.  Gardner,  172. 

Van  Aernam  v.  Van  Aernam,  299. 

Van  Alst  v.  Hunter,  554. 

Vanata  v.  Johnson,  196. 

Vanatta  v.  Carr,  360. 

Van  Beuren's  Estate,  In  re,  406.. 

Vance,  In  re,  393. 

Vance  v.  Calhoun,  362. 

Vance  v.  Word,  527. 

Vanderbilt  v.  Turnpike  Co.,  649. 

Vanderburg  v.  Williamson,  439. 

Van    Derheyden    v.    Van   Derheyden, 

431. 

Van  Derlyn  v.  Mack,  317. 
Van  Deusen  v.  Sweet,  539. 
Van  Dusan  v.  Van  Dusan,  53. 
Van  Dusen  v.  Letellier,  609. 
Van  Duzer  v.  Van  Duzer,  140,  141,  253. 
Van  Epps  v.  Van  Deusen,  135,  137,  401. 


738 


CASES  CITED 
[Tte  figures  refer  to  pages] 


Van  Fossen  v.  State,  244. 

Van  Guysling  v.  Van  Kuren,  552. 

Van  Horn  v.  Freeman,  383. 

Van  Horn  v.  Hann,  540. 

Van  Horn  v.  Keenan,  555. 

Van  Inwagen  v.  Van  Inwagen,  270. 

Van  Lonkhuyzen  v.  Daily  News  Co., 
562. 

Van  Matre  v.  Sankey,  320. 

Vannett  v.  Cole,  103. 

Van  Orsdal  v.  Van  Orsdal,  290. 

Vanover  v.  Steele,  296. 

Van  Patton  v.  Beals,  542. 

Vansickle  v.  Wells,  Fargo  &  Co.,  127. 

Van  Tassel  v.  State,  307. 

Van  Tuyl  v.  Van  Tuyl,  44,  45,  46,  48, 
49,  52. 

Vanuxem  v.  Bostwick,  595. 

Van  Vacter  v.  McKillip,  111,  120. 

Van  Valkinburgh  v.  Watson,  324,  481. 

Van  Voorhis  v.  Brintnall,  67. 

Van  Walters  v.  Board  of  Children's 
Guardians  of  Marion  County,  463. 

Van  Winkle  v.   Satterfield,  597. 

Van  Wyck  v.  Brasher,  555. 

Variety  Mfg.  Co.  v.  Landaker,  647. 

Varner,  Appeal  of,  187. 

Varney  v.  Young,  333,  359. 

Vase  v.  Myott,  85. 

Vason  v.  Bell,  219,  424. 

Vasse  v.  Smith,  524,  527. 

Vaughan  v.  Rhodes,  385. 

Veal  v.  Fortson,  497. 

Venue  v.  Pinkham,  517. 

Vent  v.  Osgood,  473,  476,  492,  505,  516, 
517. 

Vercade  v.  Vercade,  261. 

Verholf  v.  Van  Houwenlengen,  122. 

Vermilya  v.  Bunce,  458. 

Verneuille,  Succession  of,  15L 

Vernon  v.  Vernon,  220. 

Verser  v.  Ford,  345,  346. 

Vest  v.  Kramer,  86,  87. 

Vetten  v.  Wallace,  306. 

Veverley,   Case  of,  537. 

Vidalia  Compress  &  Power  Co.  v.  Ma- 
thews,  592. 

Viertel  v.  Viertel,  274,  275,  278. 

Vigno  v.  Vigno,  32. 

Village  of  Holcomb,  In  re,  147,  148. 

Village  of  Montgomery  v.  Robertson, 
611. 

Villard  v.  Robert,  415. 

Villareal  v.  Mellish,  344. 

Villescas  v.  Arizona  Copper  Co.,  150. 

Vilter  Mfg.  Co.  v.  Kent,  614. 

Vilter  Mfg.  Co.  v.  Otte,  631. 

Vincent  v.  Ireland,  126,  200. 

Vincent  v.  Starks,  429. 


Vindicator  Consol.  Gold  Mining  Co.  v. 

Firstbrook,  621. 
Vine  v.  Saunders,  96. 
Vinegar  Bend  Lumber  Co.  v.  Leftwich, 

211. 

Vineyard  v.  Heard,  396. 
Vinson  v.  State,  530. 
Vinson   v.    Willingham    Cotton    Mills, 

607. 

Vinton  v.  Beamer,  146. 
Vinton  v.  Schwab,  608,  615. 
Viou  v.  Brooks-Scanlon  Lumber  Co., 

€20. 

Virgin  v.  Marwick,  316. 
Virtue  v.  People,  77. 
Vischer  v.  Vischer,  246. 
Vizonneau  v.  Pegram,  187. 
Vocht  v.  Kuklence,  103,  104. 
Voessing  v.  Voessing,  430. 
Vogel  v.  American  Bridge  Co.,  624. 
Vogel  v.  Zuercher,  539. 
Vohs  v.  Shorthill  &  Co.,  613. 
Voltz  v.  Voltz,  447. 
Vondal  v.  Vondal,  11. 
Von  der  Horst  v.  Von  der  Horst,  320. 
Von  Glahn  v.  Von  Glahn,  256. 
Von  Heyne  v.  Tompkins,  590,  592,  593. 
Voorhees  v.  Presbyterian  Church,  229. 
Voorhees  v.  Voorhees,  52,  53. 
Voss  v.  Sylvester,  160. 
Voss  v.  Voss,  243. 
Vessel  v.  Cole,  376,  380,  383,  384. 
Votaw  v.  Votaw,  253. 
Vreeland  v.  Vreeland,  64,  295. 
Vreeland's  Ex'rs  v.  Ryno's  Ex'r,  129, 

130. 
Vusler  v.  Cox,  175. 

w 

W.  v.  H.,  29. 

Wabash  R.  Co.  v.  Hassett,  631. 
Wabash  R.  Co.  v.  McDaniels,  358,  611. 
Wackerle  v.  People,  452. 
Wade  v.  Kalbfleisch,  3. 
Wade  v.  Lobdell,  444. 
Wade  v.  Pulsifer,  448. 
Wade  v.  Wade,  150,  151,  152. 
Wadkins  v.   Producers'  Oil   Co.,  151, 

153. 

Wadleigh  v.  Newhall,  344,  346. 
Wadsworth  v.  Sharpsteen,  556. 
Wadsworth  v.  Wadsworth,  564. 
Wagener  v.  Bill,  92. 
Waggoner  v.  Miller,  309. 
Wagner,  In  re,  398. 
W; timer  v.   Mutual   Life  Ins.   Co.  of 

New  York,  203. 
Wagner  v.  Nagel,  172. 


CASES  CITED 


739 


Wagner  v.  Varner,  316,  317. 

Wagner  v.  Wagner,  253,  266. 

Wagoner  v.  State,  531. 

Wagstaff  v.  Smith,  186. 

Wailing  v.  Toll,  486. 

Wainwright  v.  Wilkinson,  468,  473. 

Wait  v.  Maxwell,  539,  542. 

Wakefleld  v.  Boston  Coal  Co.,  647. 

Wakefield  v.  Mackay,  10,  11. 

Wakeham  v.  Barker,  599. 

Waldrom  v.  Waldrom,  410. 

Waldron,  Case  of,  347. 

Waldron  v.  Waldron,  120,  255. 

Waldstein  v.  Barnett,  419. 

Wales  v.  Coffin,  146, 148. 

Wales  v.  Miner,  121. 

Walkenhorst  v.  Lewis,  470. 

Walker,  Case  of,  142. 

Walker  v.  Association,  602. 

Walker  v.  Cronin,  643,  644. 

Walker  v.  Davis,  524. 

Walker  v.  Denison,  583. 

Walker    v.    Farmers'    &    Merchants' 

State  Bank  of  Winters,  201. 
Walker  v.  Houghteling,  87. 
Walker  v.  Klapp,  336. 
Walker  v.  Laighton,  88,  175,  176,  177, 

178,  260,  262. 
Walker  v.  Reamy,  107. 
Walker  v.  Simpson,  174,  181. 
Walker  v.  Thompson,  426,  436,  443. 
Walker  v.  Walker,  244,  245,  262,  264, 

426. 

Walker  v.  Walker's  Ex'r,  240. 
Walker  v.  Wetherell,  415. 
Walker  v.  Winn,  539. 
Walker's   Adm'r   v.    Walker's   Adm'r, 

132, 

Walker's  Estate,  In  re,  31,  297. 
Wall  v.  McEnnery's  Estate,  319. 
Wall  v.  Stanwick,  401,  418. 
Wall  v.  Tomlinson,  133. 
Wallace  v.  Burden,  130. 
Wallace  v.  Clark,  383. 
Wallace  v.  Cox,  363. 
Wallace  v.  De  Young,  602. 
Wallace  v.  Floyd,  577. 
Wallace  v.  Holmes,  440. 
Wallace  v.  Leroy,  484,  486,  509. 
Wallace  v.  McDaniel,  36. 
Wallace  v.  Morss,  528. 
Wallace  v.  Noland,  317. 
Wallace  v.  Reddick,  390. 
Wallace  v.  Swepston,  458. 
Wallace  v.  Wallace,  186,  271,  295,  296, 

297. 
Wallace's  Lessee  v.  Lewis,  494,   502 

507. 
Waller  v.  Armistead's  Adm'rs,  448. 


Walli,  Appeal  of,  444. 

Wallin  v.  Arcadia  &  B.  R.  R.  Co.,  621. 

Wallin  v.  Highland  Park  Co.,  484. 

Walling,  In  re,  457. 

Wallingsford  v.  Allen,  231,  232,  233. 

Wallis  v.  Bardwell,  487. 

Walls  v.  State,  24,  25,  57. 

Walmesley  v.  Walmesley,  255. 

Walsh  v.  Young,  512. 

Waltermire  v.  Waltermire,  252,  253. 

Walters  v.  Chicago,  R.  I.  &  P.  R.  Co., 

523. 

Walters  v.  Ebrall,  435. 
Walther  v.  American  Paper  Co.,  639. 
Walton  v.  Malcolm,  541. 
Walton  v.  Walton,  32,  51,  262,  268,  390. 
Walton  v.  Yturria,  315. 
Walworths'  Estate,  In  re,  317. 
Wambold  v.  Vick,  359,  365. 
Wamsley  v.  Lindenberger,  476. 
Wandersee  v.  Wandersee,  351. 
Wangler  Boiler  &  Sheet  Metal  Works 

Co.  v.  Industrial  Commission,  636, 

637. 

Wanisch  v.  Wuertz,  516. 
Wann  v.  Wann,  351. 
Wapello  County  v.  Eikelberg,  536. 
Waples  v.  Hastings,  473. 
Warburton  v.  White,  155. 
Ward,  In  re,  413,  446. 
Ward  v.  Ames,  587. 
Ward  v.  Anderson,  503,  514. 
Ward  v.  Dulaney,  18,  21. 
Ward  v.  Laverty,  518,  519. 
Ward  v.  Rogers,  546. 
Ward  v.  Roper,  409. 
Ward  v.  Wkrd,  264,  345,  500,  515. 
Ward's  Estate,  In  re,  314. 
Ware  v.  Cartledge,  476. 
Ware  v.  Coleman,  406. 
Ware  v.  Polhill,  434. 
Ware  v.  Ware,  428. 
Ware  v.  Ware's  Adm'r,  132. 
Wlaring  v.  Darnall,  429. 
Waring  v.  Waring,  256. 
Waring's  Will,  In  re,  398. 
Warner  v.  King,  318. 
Warner  v.  Warner,  224,  260,  266,  278, 

279. 

Warner's  Estate,  In  re,  153. 
Warren  v.  Crow,  211. 
Warren  v.  Norguard,  336. 
Warren  v.  Warren,  42, 120. 
Warrender  v.  Warrender,  2,  67. 
Warth  v.  Jackson  County  Court,  109. 
Warwick  v.  Cooper,  477. 
Wasem  v.  Raben,  200. 
!  Washabaugh  v.  Hall,  438. 
i  Washaw  v.  Gimble,  347,  349,  352,  353. 


740 


CASES  CITED 
[Tbe  figures  refer  to  pages] 


Washburn  v.  Abrams,  385. 
Washburn  v.  Gray,  212. 
Washburn  v.  Hale,  130. 
Washburn  v.  White,  315. 
Washington  University  v.  Finch,  568. 
Washington  &  G.  R.  Co.  v.  McDade, 

607. 

Waterman  v.  Higgins,  232. 
Waterman  v.  Wright,  451. 
Waterman  Lumber  Co.  v.  Beatty,  615, 

639. 

Waters  v.  Ebrall,  435. 
Waters  v.  Gray,  345. 
Watkins,  Ex  parte,  442. 
Watkins  v.  Clark,  336. 
Watkins  v.  De  Armond,  175,  179. 
Watkins  v.  Lord,  121. 
Watkins  v.  Watkins,  3,  226,  227,  244. 
Watkins  v.  Young,  391. 
Watkins'  Adm'rs  v.  State,  445. 
Watkins  &  Thurman  v.  Napier,  582. 
Watson,  Ex  parte,  463. 
Watson  v.  Cross,  483. 
Watson  v.  Peebles,  495,  501. 
Watson  v.  Ruderman,  476,  492,  497. 
Watson  v.  Warnock,  404. 
Watson  v.  Watson,  223,  259. 
Watson  v.  Wrightsman,  524. 
Watt  v.  Allgood,  442. 
Watt  v.  Smith,  536. 
Watt  v.  Watt,  138. 
Watters  v.  Watters,  20. 
Watts  v.  Cook,  439. 
Watts  v.  Dull,  312,  313. 
Watts  v.  Gantt,  211. 
Watts  v.  Hicks,  454,  469. 
Watts  v.  Houston,  487. 
Watts  v.  Ohio  Valley  Electric  R.  Co., 

637,  638. 

Watts  v.  Owens,  295,  296,  300. 
Watts  v.  Snodgrass,  155. 
Watts  v.  Watts,  77. 
Watts,  Watts  &  Co.  v.  Unione  Aus- 

triaca  Di  Navigazione,  567. 
Waughop  v.  Waughop,  18. 
Waxelbaum  v.  Limberger,  589. 
Way  v.  R.  Co.,  618. 
Waymire  v.  Jetmore,  60. 
Wayne  v.  Lewis,  163. 
Weatherall  v.  Weatherall,  51,  53. 
Weatherford  v.  Weatherford,  52. 
Weathersbee  v.  Blanton,  416. 
Weatherston  v.  Hawkins,  601. 
Weaver  v.  Bachert,  379. 
Weaver  v.  Glenn,  470. 
Weaver  v.  Iselin,  368. 
Weaver  v.  Jones,  474,  475. 
Weaver  v.  Thornton,  444. 
Weaver  v.  Ward,  546. 


Webb  v.  England,  599. 

Webb  v.  Harris,  468. 

Webb  v.  Mclntosh,  316. 

Webb  v.  Reagin,  510. 

Webber  v.   Spannhake,   ISO. 

Weber  v.  Bottger,  544. 

Weber  v.  Doust,  464. 

Weber  v.  Weber,  119. 

Webster  v.  Conley,  441. 

Webster  v.  Wadsworth,  413. 

Webster  v.  Webster,  33. 

Webster  v.  Woodford,  537,  538. 

Weed  v.  Ellis,  430. 

Weedman's  Estate,  In  re,  535S 

Weedon  v.  Timbrell,  121. 

Weeks  v.  Holmes,  357. 

Weeks   v.   Merrow,   324. 

Weeks  v.  Wilkins,  495. 

Weems  v.  Bryan,  141. 

Weese  v.  Yokum,  360. 

Weidenhammer  v.  McAdams,  473. 

Weidenhoft  v.  Primm,  44. 

Weigand  v.  Weigand,  260,  266. 

Weil  v.  Dry  Dock,  E.  B.  &  B.  R,  Co., 

523. 

Weill   v.   Weill,    10. 
Weingreen  v.  Beckton,  172. 
Weir  v.   Marley,  352,  353. 
Weis  v.  Bach,  216. 
Weisberg  v.  Weisberg,  26. 
Weise  v.  Supervisors,  577. 
Weiserbs  v.  Weiserbs,  81,  83. 
Weisker  v.  Lowenthal,  175, 179. 
Weiss  v.  Coudrey,  470. 
Weiss  v.  Weiss,  282,  351. 
Welch  v.  Bunce,  492. 
Welch  v.  Carlucci  Stone  Co.,  618. 
Welch  v.   Goodwin,  655. 
Welch  v.   Welch,   275,   281,  349,   350, 

351. 

Weld  v.  Johnson  Mfg.  Co.,  439. 
Weller  v.  Baker,  125,  142. 
Weller  v.  Suggett,  442. 
Weller  v.  Weller,  270. 
Wellesley  v.  Duke  of  Beaufort,  330, 

344,  400,  404. 

Wellesley  v.  Wellesley,  344,  418. 
Wellman   v.   Wellman,   278. 
Wells,  In  re,  314. 
Wells  v.  Andrews,  442. 
Wells  v.  Chaffln,  438. 
Wells  v.  Fletcher,  58. 
Wells  v.  Seixas,  495. 
Wells  v.  Smith,  469. 
Wells  v.  Steckleberg,  439. 
Wells  v.  Stout,  240. 
Wells  v.  Tyler,  131,  132, 
Wells  v.  Wells,  461. 
Wells'  Estate,  In  ie,  45,  51. 


CASES  CITED 
[The  figures  refer  to  pages] 


741 


Wendel  v.  Wendel,  10,  29. 

Wenham  v.  State,  574. 

Wennell  v.  Dowson,  368. 

Wenning  v.  Teeple,  64. 

Weringer's  Estate,  In  re,  182. 

Werner,  Appeal  of,  483. 

Werner  v.  Werner,  58. 

Wertz  v.  Wertz,  19. 

Wescott  v.  Upham,  457. 

West  v.  Burke,  231. 

West  v.  Gregg's  Adm'r,  486,  487. 

West   v.   Laraway,   212. 

West  v.  Redmond,  296,  297. 

WTest  v.  Russell,  538,  539. 

West  v.  Seaboard  Air  Line  Ry.,  544. 

Westbrook  v.  Comstock,  457. 

West  Duluth  Land  Co.  v.  Kurtz,  440. 

Western  Coal  &  Mining  Co.  v.  Burns, 

620.     • 
Western  Indemnity  Co.  v.  Pills  bury, 

637. 

Western  Union  Tel.  Co.  v.  Erwin,  367. 
Western  Union  Tel.  Co.  v.  Greer,  483, 

508. 

Western  Union  Tel.  Co.  v.  Rowe,  201. 
Western  Union  Tel.  Co.  v.  Seemes,  586. 
Westervelt   v.   Gregg,   197. 
Westinghouse,  Church,  Kerr  &  Co.  v. 

Callahan,  621,  622,  629,  631. 
West  Jersey  Trust  Co.  v.  Philadelphia 

&  R.  R,  Co.,  637. 
Westlake  v.  Westlake,  117, 120. 
Westman  v.  Wind  River  Lumber  Co., 

610. 
Westmeath   v.   Westmeath,   251,   256, 

277,  278,  280. 
Weston  v.  Stuart,  430. 
Wethered  v.  Conrad,  167. 
Wetherington  v.  Wetherington,  253. 
Wetsel  v.  Firebaugh,  216. 
Whalen  v.  Michigan  Cent.  R.  Co.,  617. 
Whalen  v.  Pennsylvania  R.  Co.,  656. 
Wharton  v.  Christie,  586. 
Wharton  v.  Mackenzie,  483. 
Whatman  v.  Pearson,  646. 
Wheaton  v.  Eiast,  499,  502. 
Wheeler   v.    Berry,   619. 
Wheeler  v.  Bowen,  133. 
Wheeler  v.  Hollis,  417. 
Wheeler  v.  James  &  James,  430. 
Wheeler  v.  Moore,  133. 
Wheeler  v.  Reed,  655. 
Wheeler  v.   St.  Joseph  &  W.  R.  Co., 

387. 

Wheeler  v.  State,  355. 
Wheeler  v.  Wheeler,  269. 
Wheeler  &  Wilson  Mfg.  Co.  v.  Heil, 

96,  103. 
Whelan  v.  Cook,  568S 


Whippen  v.  Whippen,  70. 

Whipple  v.  Dow,  325,  331. 

Whirley  v.  Whiteman,  523. 

Whispell  v.  Whispell,  251. 

Whisterlo,  Case  of,  300. 

Whitacre  v.  Whitacre,  250. 

Whitaker,  In  re,  451. 

Whitaker  v.  Warren,  372,  373,  376. 

Whitaker  v.  Whitaker,  129,  138. 

Whitbourne  v.  Williams,  380. 

Whitcom  v.  Joslyn,  491. 

White,  Ex  parte,  530. 

White  v.  Bigelow,  227. 

White  v.  Board  of  Managers  of  State 
Industrial  School,  464. 

White  v.  Henry,  357,  361. 

White  v.  Hill,  22. 

White  v.  Howard,  417. 

White  v.  Laurel  Land  Co.,  467. 

White  v.  Lowe,  58. 

White  v.  McDowell,  326,  328. 

White  v.  Mann,  323. 

White  v.  Murtland,  371,  380. 

White  v.  Nellis,  383. 

White  v.  Owosso  Sugar  Co.,  614. 

White  v.  Parker,  418,  422,  428,  431. 

White  v.  Pomeroy,  403. 

White  v.  Ross,  117. 

White  v.  Sikes,  475,  492,  509,  512. 

White  v.  Wager,  230,  233. 

White  v.  White,  35,  40,  44,  50,  61,  72, 
326,  327. 

Whiteman  v.  Whiteman,  132. 

Whiters  v.  Mallory  S.  S.  Co.,  630. 

White  Sewing  Machine  Co.  v.  Shad- 
dock, 583. 

Whitesides  v.  Dorris,  135. 

Whitfield  v.  Burrell,  444. 

Whitfield  v.  Whitfield,  260. 

Whiting  v.  Dewey,  441. 

Whiting  v.  Earle,  359,  360,  362. 

Whiting-Mead  Commercial  Co.  v.  In- 
dustrial Accident  Commission,  640. 

Whitlock  v.  Whitlock,  250. 

Whitmarsh  v.  Hall,  492,  505,  517. 

Whitmer's  Estate,  In  re,  225. 

Whitmore  v.  Delano,  96. 

Whitmore  v.  Werner,  585. 

Whitney  v.  Dutch,  472,  475,  498,  499. 

Whitney  v.  Hitchcock,  375. 

Whitney  v.  Twombley,  554. 

Whittemore  v.  Coleman,  451. 

Whittemore  v.  Elliott,  475. 

Whittingham,  Case  of,  496. 

Whittingham  v.  Hill,  486. 

Whittington  v.  McCaskill,  68. 

Whittlesey  v.  Fuller,  149. 

Wickham  v.  Torley,  472. 

Wickiser  v.  Cook,  447. 


742 


CASES  CITED 
[Tbe  figures  refer  to  pages] 


Wicks  v.  Mitchell,  212. 

Wickstrom  v.  Peck,  172,  173,  179. 

Wieland  v.  Kobick,  491. 

Wiengreen  v.  Becktou,  172. 

Wier  v.  Still,  10,  11. 

Wiggins  v.  Keizer,  306. 

Wigglesworth  v.  Steers,  556. 

Wightman  v.  Wightiiiau,  50,  60. 

Wilbur  v.   Bingham,  31. 

Wilbur  v.  Crane,  307. 

Wilcox   v.    Roatii,   498. 

Wilcox  v.  Wilcox,  44,  61,  69. 

Wilder  v.  Aldrich,  132. 

Wilder  v.  Brokaw,  83,  160,  179. 

Wilder  v.  Brooks,  231,  232. 

Wilder  v.  Richie,  199. 

Wilder  v.  Weakley's  Estate,  541. 

Wilhelm  v.  Hardman,  508,  514. 

Wilhelm  v.  Hendrick,  430. 

Wilhite  v.  Wilhite,  35. 

Wilhoit  v.  Hancock,  383. 

Wilkie  v.  Collins,  64. 

Wilkins'   Guardian,   In   re,   417. 

Wilkinson  v.  Buster,  520. 

Wilkinson   v.    Deming,   351. 

Wilkinson  v.  Lee,  353. 

Wikstrom  v.  Preston  Mill  Co.,  613. 

Will,  Appeal  of,  436. 

Willard  v.  Eastham,  190,  192. 

Willard  v.  Greenwood,  210. 

Willard  v.  Willard,  13,  14. 

Willets  v.  Green,  593. 

William  v.   Beebe,  154. 

William  Grace  Co.  v.  Kane,  611. 

Wm.  Rogers  Mfg.  Co.  v.  Rogers,  599. 

Williams,  Case  of,  436,  437. 

Williams,  In  re,  232,  312.  461. 

Williams  v.  Betts,  229,  232. 

Williams  v.  Canary,  389. 

Williams  v.  Car  Co.,  650. 

Williams  v.  Chicago,  B.  &  Q.  R.  Co., 

407. 

Williams  v.  Chitty,  217. 
Williams  v.  Cleaveland,  396,  468. 
Williams  v.  Goss,  268. 
Williams  v.  Harrington,  437. 
Williams  v.  Harrison,  475. 
Williams  v.  Hays,  546. 
Williams  v.  Hugunin,   162,   195,  208, 

211,  213. 

Williams  v.  Hutchinson,  320. 
Williams  v.  Inabnet,  556. 
Williams  v.  Kilburn,  44. 
Williams  v.  Kimball,  309. 
Williams  v.  Knight,  312. 
Williams  v.  McKeene,  27,  57. 
Williams  v.  Monroe,  180. 
Williams  v.  Morton,  439,  458. 
Williams  v.  Gates,  72. 


Williams  v.  Powell,  447. 

Williams   v.    Prince,    177. 

Williams  v.  Rollins,  317. 

Williams  v.  Sleepy  Hollow  Mining  Co., 

609,  610. 

Williams  v.  Sloan,  133. 
Williams  v.  State,  14,  32,  57,  531. 
Williams   v.    Walker,    164. 
Williams  v.  Wentworth,  540. 
Williams  v.  Williams,  40,  43,  120,  250, 

251,  253,  255,  257,  262,  263,  290,  330, 

421,  422,  439. 

Williamson  v.  McElroy,  154. 
Williamson  v.  Watts,  482. 
Williamson  v.  Williamson,  10,  244. 
Williamson  Iron  Co.  v.  McQueen,  626. 
Willick  v.  Taggart,  441. 
Williford  v.  Phelan,  131. 
Willis,  Ex  parte,  464. 
Willis   v.    Bell,   312. 
Willis  v.  Bernard,  115. 
Willis  v.   Com.,   559. 
Willis  v.  Fox,  436,  437. 
Willis  v.  J.  G.  White  &  Co.,  110. 
Willis  v.  Railway  Co.,  576. 
Willis  v.  Rice,  448. 
Willis   v.   Twambly,  476,   493. 
Willits  v.  Willits,  3,  24. 
Wills  v.  Wills,  327,  351. 
Willoughby  v.  Thomas,  596,  598, 
Willwerth  v.  Leonard,  543. 
Wilmer  v.  Wilmer,  277. 
Wilmington  Coal  Min.  &  Mfg.  Co.  v. 

Lamb,  582. 
Wilmington  Trust  Co.  v.  Hendrixson, 

41. 

Wilmot  v.  McPadden,  523,  652. 
Wilson,  Bx  parte,  269. 
Wilson  v.  Allen,  33,  61. 
Wilson  v.  Bass,  309. 
Wilson  v.  Brockley,  57. 
Wilson  v.  Brown,  106. 
Wilson  v.   Buchanan,   237. 
Wilson  v.  Burnett,  34,  51.  53,  62. 
Wilson  v.  Cook,  35,  41,  72. 
Wilson   v.   Dearborn,   161. 
Wilson  v.  Fidelity  Trust  Co.,  447. 
Wilson  v.  Ford,  180. 
Wilson  v.  Frost,  146. 
Wilson  v.  Garrard,  335,  525. 
Wilson  v.  Glossop,  177. 
Wilson  v.  Insurance  Co.,  504. 
Wilson  v.  Jones,  190,  192. 
Wilson  v.  McMillan,  359,  364,  365. 
Wilson  v.  Mitchell,  553. 
Wilson  v.  Peverly,  648. 
Wilson   v.    Railroad   Co.,   620. 
Wilson  v.  Southern  Ry.,  628. 
Wilson  v.  Stone,  154. 

\ 


CASES  CITED 
[The  figures  refer  to  pages] 


743 


Wilson  v.  Thomass,  172. 

Wilson  v.  Wilson,  18,  155,  239,  275,  283, 

284,  297,  445. 

Wilson's  Trusts,  In  re,  31,  33. 
Wilt  v.  Welsh,  527. 
Wilton  v.  Middlesex  R.  Co.,  366,  367, 

368,  369. 

Wimberly  v.  Jones,  502. 
Wimbrough  v.  Wimbrough,  8,  15,  60. 
Winans  v.  Peebles,  230,  233. 
Winchester  v.  Reid,  365. 
Winchester   v.   Winchester,  155. 
Windsor  v.  McAtee,  453. 
Winestine  v.  Ziglatzki-Marks  Co.,  140. 
Wing   v.   Deans,    165. 
Wing  v.  Hurlburt,  180. 
Wingo  v.  Rudder,  63,  64. 
Winkler  v.  Powell,  260. 
Winkles  v.  Powell,  88,  292. 
Winn  v.  Holliday,  335. 
Winslow  v.  State,  356,  357. 
Winsmore  v.  Greenbank,  113. 
Winter  v.  Dibble,  63,  64. 
Winter  v.  Henn,  120,  121,  122. 
Winter  v.  Winter,  240. 
Winterburn  v.  Brooks,  340. 
Winters  v.  Kansas  City  Cable  R.  Co., 

523. 

Winters  v.  Winters,  151. 
Wirebach's  Ex'r  v.  First  Nat.  Bank, 

546. 

Wirgman  v.  Miller,  212. 
Wirsig  v.  Scott,  405,  407. 
Wirth  v.  Wirth,  81. 
Wiseman  v.  Railroad  Co.,  598. 
Wiser  v.  Lockwood's  Estate,  20. 
Wisner's  Estate,  In  re,  433,  434. 
Withers  v.  Hickman,  413,  415. 
Wits-Keets-Poo  v.  Rowton,  155. 
Witter  v.  Cook  County  Com'rs,  461. 
Witter  v.  Witter,  434. 
Wittick's  Estate,  In  re,  26,  45. 
Wochner  v.  Pennsylvania  Engineering 

Works,  608,  632. 
Wodell   v.   Coggeshall,   356,   362,   370, 

386. 

Wohlford  v.  Burckhardt,  345. 
Wolcott  v.  Connecticut  General  Life 

Ins.  Co.,  539. 

Wolf  v.  Gall,  58,  301,  308,  309. 
Wolf  v.  Schulman,  176. 
Wolfe  v.  Howes,  594. 
Wolfe  v.  State,  458. 
Wolfe's  Estate,  In  re,  446. 
Wolff  v.  Foote  Bros.  Gear  Mach.  Co., 

610. 

Wolff  v.  Wolff,  255,  279. 
Womack  v.  Womack,  514. 
Womble  v.  Womble,  261. 


Wood,  Ex  parte,  461. 

Wood,  In  re,  420,  445. 

Wood  v.  Baker,  25,  57. 

Wood  v.  Bapp,  466. 

Wood  v.  Black,  453,  454. 

Wood  v.  Danas,  634. 

Wood  v.  Downes,  448. 

Wood  v.  Losey,  487. 

Wood  v.  Mathews,  120,  121. 

Wood  v.  Shaw,  352. 

Wood  v.  Stafford,  452. 

Wood  v.  Wood,  194,  195,  244,  260,  269, 

280,  284,  286,  347,  409,  417,  418. 
Wood  v.  Yant,  210. 
Wood's  Estate,  In  re,  433. 
Wood's  Estate  &  Guardianship,  In  re, 

422,  426. 

Woodbury  v.  Hammond,  451. 
Woodman  v.  Chapman,  184. 
Woodman  v.  Hubbard,  526. 
Woodrow  v.  Hawving,  589,  602. 
Woods  T.  Boots,  434. 
Woods  v.  Richardson,  216. 
Woodstock  Iron  Works  v.  Kline,  613. 
Woodward,  Appeal  of,  311,  312,  320. 
Woodward  v.  Anderson,  379. 
Woodward  v.  Barnes,  99,  100,  171,  173, 

175. 

Woodward  v.  Blake,  35. 
Woodward  v.  Donnell,  359. 
Woodward  v.  Walton,  378. 
Woodward  v.  Washburn,  643. 
Woodward  v.  Woodward,  273,  274,  275, 

315,  320. 

Woodward  Iron  Co.  v.  Cook,  369. 
Woodward  Iron  Co.  v.  Curl,  611,  612. 
Woodworth  v.  Spring,  442. 
Wooldridge  v.  La  Voie,  516. 
Woolf  v.  Pembertou,  469. 
Woolston's  Appeal,  237. 
Woolworth  v.  Woolworth,  246. 
Word  v.  Colley,  154. 
Worden  v.  Worden,  152. 
Worez  v.  Des  Moines  City  R.  Co.,  109. 
Work  v.  Campbell,  119. 
Workman  v.  Workman,  117,  119. 
Wornack  v.  Loar,  487. 
Worrell,  Appeal  of,  431,  433. 
Worsley  v.  Worsley,  278. 
Worth  v.  Curtis,  438. 
Worthy  v.  Jonesville  Oil  Mill,  476. 
Wray  v.  Wray,  248. 
Wray  v.  Wrightsman,  510. 
Wren  v.  Gayden,  444. 
Wren  v.  Kirton,  421. 
Wright,  Ex  parte,  551. 
Wright,  In  re,  313,  395,  551. 
Wright  v.  Blackwood,  208. 
Wright  v.  Buchanan,  476,  496,  497. 


744 


CASES  CITED 
[The  figures  refer  to  pages] 


Wright  v.  Comley,  435. 

Wright    v.    Cosmopolitan    Life    Ins. 

Ass'n,  428. 

Wright  v.  Graham,  567. 
Wright  v.  Hicks,  296,  298,  299,  300. 
Wright  v.  Jackson,  553. 
Wright  v.  Kerr,  96. 
Wright  v.  Lake,  589. 
Wright  v.  Leonard,  98,  99. 
Wright  v.  Leupp,  325. 
Wright  v.  London  &  N.  W.  R.  Co.,  623. 
Wright  v.   McNatt,  469. 
Wright  v.  Naylor,  408. 
Wright  v.  Omaha,  110. 
Wright  v.   Saddler,  146. 
Wright  v.  Vanderplank,  389. 
Wright  v.  Wilcox,  649. 
Wright  v.  Wright,  305,  306,  405. 
Wright  v.  Yazoo  &  M.  V.  R.  Co.,  621. 
Wrynn  v.  Downey,  43. 
Wuest  v.  Wuest,  244. 
Wuesthoff  v.  Germania  Life  Ins.  Co., 

457. 
Wuller  v.  Chuse  Grocery  Co.,  476,  490, 

492,  510,  512. 

Wunderle  v.  Wunderle,  565,  566. 
Wusnig  v.  State,  530. 
Wyatt  v.  Simpson,  142. 
Wyatt  v.  Smith,  197. 
Wyckoff,  In  re,  405. 
Wyckoff  v.  Boggs,  39. 
Wyeuian  v.  Deady,  645. 
Wylly  v.  Collins,  87. 
Wyman  v.  Hooper,  420. 
Wythe  v.  Smith,  196. 
W.  &  J.  Sloane  v.  Boyer,  175,  179. 


Yakima  Joe  v.  To-Is-Lap,  55. 

Yale  v.   Dederer,  161,  190,   192,  211, 

212,  213. 

Yancey  v.  Boyce,  515,  516. 
Yardley  v.  San  Joaquin  Valley  Bank, 

155. 

Yardley's  Estate,  In  re,  76,  258. 
Yates  v.  Boen.  537. 
Yates  v.  Craddock,  309. 
Yates  v.  Lyon,  475. 
Yates  v.  Houston,  64. 
Yeager,  Appeal  of,  443,  444. 
Yeakle  v.  Winters,  456. 
Yeatman  v.  Yeatman,  258. 


Yerrington  v.  Greene,  594,  604. 

Yesler  v.  Hochstettler,  154. 

Yockey  v.  Marion,  223. 

Tone  v.  Barnet,  137. 

Yopst  v.  Yopst,  125. 

York,  Case  of,  530. 

York  v.  Hilger,  154. 

Yost  v.  State,  457,  458. 

Youn  v.  Lamont,  555. 

Young  v.  Biehl,  148. 

Young  v.  Brown,  146,  211,  230. 

Young  v.  Duncan,  637,  638. 

Young  v.  Hart,  159. 

Young  v.  Herman,  390. 

Young  v.  Hiner,  519. 

Young  v.  Lorain,  441,  452. 

Young  v.  McFadden,  205. 

Young  v.  McKee,  503,  507. 

Young  v.  Muhling,  526. 

Young  v.  Sterling  Leather  Works,  461. 

Young  v.  Stevens,  542. 

Young  v.  Young,  272,  546. 

Youngblood  v.  Hceffle,  489,  497. 

Youngs  v.  Youngs,  251,  268. 

Younkin  v.  Rocheford,  648. 

Yundt  v.  Hartrunft,  121. 


Zabriskie  v.  Erie  R.  Co.,  640. 
Zachary  v.  Cadenhead,  184. 
Zahorka  v.  Geith,  31. 
Zancanelli  v.  Central  Coal  &  Coke  Co., 

637. 

Zeideinan  v.  Molasky,  401. 
Zeiderman  v.  Molasky,  409. 
Ziegler  v.  Cassidy,  43. 
Zeis  v.  St.  Louis  Brewing  Ass'n,  614. 
Zent  v.  Fuchs,  320. 
Zent  v.  Sullivan,  175,  180. 
Zentzis  v.  Zentzis,  287. 
Zimmerman  v.  Zimmerman,  283. 
Zink  v.  Milner,  352. 
Zorn,  Ex  parte,  534. 
Zorntlein  v.  Bram,  146,  148. 
Zouch  v.  Parsons,  475,  476,  478,  479, 

492. 
Zuck  v.  Turner  Harness  &  Carriage 

Co.,  510. 

Zuckerman  v.  Munz.  155. 
Zundell  v.   Gess,   565. 
Zurasky  v.  Handy  Cap  Co.,  639. 
Zweig  v.  Zweig.  252,  253. 


INDEX 


[THE  FIGURES  REFER  TO  PAGES] 


A 

ABANDONMENT, 

Change  of  domicile  by  husband,  refusal  of  wife  to  follow,  88. 
Desertion  as  ground  for  divorce,  257. 

Cessation  of  cohabitation,  258. 

Consent  of  the  abandoned  spouse,  263. 

Intention  to  abandon,  262. 

Misconduct  of  the  abandoned  spouse,  266. 

Period  of  abandonment,  261. 
Of  child  by  parent,  322. 

As  an  emancipation  of  the  child,  361. 

Liability  of  parent  for  child's  necessaries,  321. 
Of  employment  by  servant,  587. 
Of  wife  by  husband,  effect  on  wife's  power  to  contract,  158. 

Effect  on  wife's  power  to  bind  husband  for  necessaries,  176. 
Right  of  husband  and  wife  to  cohabitation  and  intercourse,  75. 

ABDUCTION, 

Of  child,  action  by  parent,  384. 

ACCOUNTING, 

By  guardian,  443. 

ACTIONS, 

See  particular  titles. 

ADMINISTRATION, 

Of  wife's  estate  by  husband,  138. 

ADOPTION, 

Agreements  to  adopt,  319. 

Descent  and  distribution  of  property,  316. 

What  law  governs,  320. 
Invalid  adoption,  319. 
Of  children,  310. 

Persons  standing  in  loco  parentis,  319. 
Proceedings,  311. 

Status  of  adoptive  parent  and  child,  314. 
What  law  governs,  320. 

ADULTERY, 

Actions  for  criminal  conversation,  by  husband,  118. 

By    wife,    122. 

Effect  on  wife's  power  to  charge  husband  for  necessaries,  177. 
TiFF.P.&D.REL.(3oED.)  (745) 


746  INDEX 

[The  figures  refer  to  pages] 

ADULTERY— Continued, 
Ground  for  divorce,  247. 
Condonation,  277. 
Connivance,  273. 
Recrimination,  281. 

ADVANCEMENTS, 

From  parent  to  child,  390. 

AFFINITY, 

Effect  on  validity  of  marriage,  25. 

AGE, 

Of  consent  to  marriage,  21. 
Of  majority,  460. 
See  Infants. 

AGENCY, 

See  Master  and  Servant;   Principal  and  Agent. 

AGREEMENTS, 
See  Contracts. 

ALIENATION  OF  AFFECTIONS, 
Of  husband,  action  by  wife,  118. 
Of  wife,  action  by  husband,  113. 

ALIENS, 

Alien  enemies,  566. 

Defined,  560. 

Naturalization,  568. 

Rights  and  liabilities  of  alien  friends,  563. 

Subject  to  the  laws,  562. 

ANNULMENT, 

Of  marriages,  55. 
Jurisdiction,  59. 
See  Divorce. 

ANTENUPTIAL  CONTRACTS, 

Marriage  as  a  consideration,  218. 
Reasonableness  of  provisions,  223. 
Settlements  based  on  antenuptial  contracts,  225. 
Statute  of  frauds,  226. 
Validity,  214. 

As  to  creditors,  221. 

ANTENUPTIAL   DEBTS, 

Of  wife,  liability  of  husband,  183. 

APPOINTMENT, 

Of  guardian,  403. 

APPRENTICES, 
In  general,  571. 

ASSAULT  AND  BATTERY, 

By  either  spouse  as  ground  for  divorce,  250. 
By  husband  on  wife,  80,  105. 
By  master  on  servant,  601. 


INDEX  747 

[The  figures  refer  to  pages] 

ASSAULT  AND  BATTERY— Continued, 
By  parent  on  child,  340. 

By  one  in  loco  parentis,  340. 
By  wife,  95. 
Defense  of  servant  by  master,  and  vice  versa,  603. 

ASSUMPTION  OF  RISKS, 
By  servant,  616. 

AVOIDANCE, 

Of  contracts  by  drunken  person,  556. 

By   infant,  488. 

By  insane  person,  543. 
Of  guardian's  unauthorized  acts,  424. 
Of  marriage,  55. 

Jurisdiction  to  annul,  59. 

Of  transactions  between  guardian  and  ward,  446. 
Of  transactions  between  parent  and  child,  387. 

B 

BASTARDS, 

Conflict  of  laws,  303. 

Custody,  305. 

Denned,  294. 

Descent  and  distribution,  307. 

Domicile,  305. 

Evidence  of  illegitimacy,  295. 

Presumption,  295. 

Legitimacy  as  affected  by  validity  of  marriage,  31. 
Legitimation  by  marriage  or  acknowledgment,  300. 
Status  of  bastards,  304-309. 
Support  and  maintenance,  306. 

BIGAMY, 

Effect  of  bigamous  marriage,  31. 

BONDS, 

Of  guardian,  456. 

BURDEN  OF  PROOF, 
As  to  marriage,  61. 

c 

CANONICAL  DISABILITIES, 

To  marriage,  affinity  and  consanguinity,  25. 
Impotence,  29. 

CELEBRATION, 

Of  marriage,   36. 

CHANCERY   GUARDIANS, 
Defined,  399. 

See  Guardian  and  Ward. 

CHASTISEMENT, 

Of  child  by  parent,  340. 
Of  servant  by  master,  601. 
Of  wife  by  husband,  80,  105. 


748  INDEX 

[The  figures  refer  to  pages] 

CHATTELS   REAL, 

Wife's  chattels  real,  139. 

CHILDREN, 

Custody,  343,  461. 

Agreements  as  to,  352. 

Illegitimate  children,   305. 

In  cases  of  divorce,  350. 

Rights  of  guardians,  408. 
Guardianship,  see  Guardian  and  Ward. 
Marriage  of,  21. 

See,  also,  Infants;    Parent  and  Child. 

CHINESE, 

Intermarriage  with  white  person,  30. 
See  Aliens. 

CHOSES  IN  ACTION, 

Of   wife,   rights   of   husband,   131. 

COERCION, 

Effect  on  validity  of  marriage,  10,  13, 16. 
Of  wife  by  husband,  crimes,  90. 
Torts.  94. 

COHABITATION, 

As  evidence  of  marriage,  49. 
Necessity  of  to  constitute  marriage,  48. 
Rights  of  husband  and  wife,  75. 
See  Desertion.* 

COLLUSION, 

To  procure  a  divorce,  276. 

COMMON  LAW, 

Marriage  at  common  law,  40. 

COMMUNITY  PROPERTY, 
Of  husband  and  wife,  150. 

COMPULSION, 

Effect  on  validity  of  marriage,  10,  13,  16. 
Of  wife  by  husband,  crimes,  90. 
Torts,  95. 

CONDONATION, 

As  a  defense  in  a  suit  for  divorce,  277. 
By  master  of  misconduct  of  servant,  592. 

CONFLICT  OF  LAWS, 

Adoption  and  inheritance  by  or  from  adopted  children,  320. 

As  to  wife's  statutory  separate  estate.  198. 

Extraterritorial  effect  of  decree  of  divorce,  287. 

Extraterritorial  effect  of  restrictions  on  right  to  marry  after  divorce,  71. 

Legitimacy  of  children,  303. 

Validity  of  marriage,  67. 

CONJUGAL  RIGHTS, 

Suits  for  restitution  of,  76. 
See  Husband  and  Wife, 


INDEX  749 

[The  figures  refer  to  pages] 

CONNIVANCE, 

As  a  defense  in  a  suit  for  divorce,  273. 

CONSANGUINITY, 

Effect  on  validity  of  marriage,  25. 

CONSENT, 

To  marriage,  7. 

CONSIDERATION, 

For  emancipation  of  child,  363. 

Necessity  of  return  on  rescission  of  contract  by  infant,  508. 

Of  antenuptial  settlement,  218. 

CONSTITUTIONAL  LAW, 

Legislative  divorces,  3,  291. 

Power  of  Legislature  to  validate  marriages,  60. 

Validity  of  married  woman's  acts,  195. 

CONSTRUCTION, 

Of  married  woman's  acts,  194,  195. 

Of  statutes  relating  to  marriage,  36,  65. 

CONTRACTS  AND  QUASI  CONTRACTS, 

Agreements  of  separation  between  husband  and  wife,  238. 
Antenuptial  settlements  and  contracts,  214. 

Marriage  as  a  consideration,  218. 

Reasonableness  of  provisions,  223. 

Settlements  based  on  antenuptial  contracts,  225. 

Statute  of  frauds,  226. 

Validity  as  to  creditors,  221. 
As  to  custody  of  child,  352. 
Between  guardian  and  ward,  446. 
Between  parent  and  child,  387. 
By  child  as  parent's  agent,  331. 
By  wife  as  husband's  agent,  168. 

Power  to  bind  husband  for  necessaries,  168. 
Conveyances,  sales,  and  gifts  by  wife,  164. 
Emancipation  of  children,  358-365. 
Hiring  by  child,  rights  of  parent,  354. 
Husband's  liability  for  wife's  antenuptial  debts,  183. 
Husband's  liability  for  wife's  funeral  expenses,  182. 
Marriage  not  a  contract,  2-5,  292. 
Of  alien  enemy,  566. 
Of  alien  friend,  563. 
Of  drunken  persons,  554. 
Of  guardian,  410. 

Liability  for  necessaries  furnished  ward,  410 
Of  hiring,  see  Master  and  Servant. 
Of  husband,  168. 
Of  infants,  471-519. 
Avoidance,  488-514. 

Return  of  consideration,  508. 
Time  of  avoidance,  491. 
Who  may  avoid,  495. 
Contracts  for  necessaries,  480. 


750  INDEX 


CONTRACTS  AND  QUASI  CONTRACTS— Continued, 
Ratification  and  disafflrmance,  488. 

Effect  of  ratification  or  disafflrmance,  514. 
Extent  of  ratification  or  disafflrmance,  507. 
What  constitutes  a  disafflrmance,  505. 
What  constitutes  ratification,  497. 
Valid  contracts,  477. 
Void  and  voidable  contracts,  472. 
Of  insane  persons,  537. 

Contracts  for  necessaries,  540. 
Insane  persons  under  guardianship,  542. 
Ratification  and  avoidance  of  contracts,  543. 
Avoidance  as  to  third  persons,  545. 
Ignorance  and  good  faith  of  the  other  party,  541. 
Return  of  consideration,  "544. 
Valid  contracts,  quasi  contracts,  540. 
Void  or  voidable,  539. 
Of  wife  at  common  law,  156. 

Parent's  liability  for  necessaries  furnished  child,  321. 
Postnuptial  settlements  and  contracts,  at  common  law,  229. 
As  against  creditors  and  purchasers,  235. 
In  equity,  230. 
To  marry,  4,  7. 
Wife  as  a  sole  trader,  162. 

Wife's  power  to  charge  her  separate  estate,  equitable  separate  estate,  189. 
Statutory  separate  estate,  203. 

CONVERSION, 
See  Torts. 

CONVEYANCES, 

Between  parent  and  child,  387. 
By  wife,  164. 

In  equity,  166. 

Under  modern  statutes,  166,  202. 

See,  also,  Aliens ;  Contracts;  Drunken  Persons ;  Guardian  and  Ward;  In- 
fants ;  Insane  Persons. 

CORRECTION, 

Of  child  by  parent,  340. 
Of  servant  by  master,  601. 
Of  wife  by  husband,  80,  105. 

COURTS, 

Jurisdiction  to  annul  marriage,  59. 
To  appoint  guardian,  406. 
To  grant  divorce,  243. 

Extraterritorial  effect  of  decree  of  divorce,  287. 

COVERTURE, 

See  Husband  and  Wife. 

CRIMES, 

As  between  husband  and  wife,  93. 
Assault  and  battery,  by  husband  on  wife,  80. 
By  master  on  servant,  601. 


INDEX  751 

[The  figures  refer  to  pages] 

CHIMES— Continued, 

By  parent  on  child,  340. 

Defense  of  servant  by  master,  and  vice  versa,  603. 
False  imprisonment  of  wife  by  husband,  78. 
Neglect  of  parent  to  support  child,  328. 
Of  child,  liability  of  parent,  338. 
Of  drunken  person,  557. 
Of  infants,  529. 
Of  insane  person,  548. 
Of  married  women,  90. 

CRIMINAL  CONVERSATION, 
Action  by  husband,  118. 
Action  by  wife,  122. 

CRIMINAL  LAW, 

See  Crimes. 
CRUELTY, 

As  a  ground  for  divorce,  249. 
Condonation,  277. 
Recrimination,  281. 

CURTESY, 

Defined  and  explained,  140. 

CUSTODY  OF  CHILDREN, 
See  Children 

D 

DAMAGES, 

For  breach  of  contract  between  master  and  servant,  595. 

DEATH, 

Husband's  right  of  action  for  wrongful  death  of  wife,  112. 
Right  of  action  for  death  of  child,  376. 

DEEDS, 

See  Aliens;    Contracts;    Drunken  Persons;    Guardian  and  Ward;    Hus- 
band and  Wife;    Infants;    Insane  Persons;    Parent  and  Child. 

DESCENT  AND  DISTRIBUTION, 

Inheritance  by  and  from  adopted  children,  316. 

What  law  governs,  320. 
Inheritance  by  and  from  illegitimate  children,  307. 

DESERTION, 

As  ground  for  divorce,  257. 

Cessation  of  cohabitation,  258. 

Consent  of  abandoned  spouse,  263. 

Intention  to  abandon,  262. 

Misconduct  of  abandoned  spouse,  266. 

Period  of  abandonment,  261. 

Return  or  offer  to  return,  261. 

Change  of  domicile  by  husband,  refusal  of  wife  to  follow,  88. 
Ot  child  by  parent,  322. 

As  an  emancipation  of  the  child,  361. 

Liability  of  parent  for  child's  necessaries,  322. 


752  INDEX 

[The  figures  refer  to  pages] 

DESERTION— Continued, 

Of  wife  by  husband,  effect  on  wife's  power  to  bind  husband  for  neces- 
saries, 176. 

Effect  on  wife's  power  to  contract,  158. 
Right  of  husband  and  wife  to  cohabitation  and  intercourse,  75. 

DISAFFIRMANCE, 

Of  contract,  see  Contracts. 
Of  marriage,  see  Marriage. 

DIVORCE, 

Annulment  of  marriage,  55. 
Causes  for  which  granted,  247-273. 
Adultery,  247. 

Conviction  of  crime  and  imprisonment,  269. 
Cruelty,  249. 
Desertion,  257. 

Cessation  of  cohabitation,  258. 
Consent  of  abandoned  spouse,  263. 
Intention  to  abandon,  262. 
Misconduct  of  abandoned  spouse,  266. 
Period  of  abandonment,  261. 
Return  or  offer  to  return,  261. 
Habitual  drunkenness,  267. 
Insanity,  270. 
Nonsupport,  270. 
Custody  of  children,  350. 
Defenses,  273-287. 
Collusion,  276. 
Condonation,  277. 

Forgiveness,  conditional,  278. 
Knowledge  of  offense,  280. 
What  amounts  to  condonation,  279. 
Connivance,  273. 
Recrimination,  281. 

Conduct,  condoned,  286. 

Conduct  constituting  ground  for  recrimination,  282. 
Statutes,  285. 

Domicile  of  wife  for  purpose  of  suit,  89. 
Effect  on  property  rights,  130. 
Jurisdiction  to  grant,  243. 

Dependent  on  domicile,  244. 
Extraterritorial  effect  of  decree,  287. 
Legislative  divorces,  3,  291. 
Maintenance  of  children  after  divorce,  326. 
Presumption  of  divorce,  62. 

Prohibition  against  marriage  by  divorced  person,  34. 
Extraterritorial  effect  of  restrictions,  71. 
See  Marriage. 

DOMICILE, 

As  conferring  jurisdiction  of  divorce  proceedings,  244. 

Of  child,  392. 

Of  illegitimate  child,  305. 


INDEX  753 

[The  figures  refer  to  pages] 

DOMICILE— Continued, 

Of  ward,  change  by  guardian,  416. 

Right  of  husband  to  determine  family  domicile,  88. 

Right  of  wife  to  acquire  domicile  for  divorce,  89. 

DOWER, 

Defined  and  explained,  144. 

DRUNKEN  PERSONS, 

Capacity  to  contract,  554. 

Capacity  to  make  a  will,  559.  , 

Effect  of  intoxication  on  validity  of  marriage,.  16,  17,  20. 

Intoxication  as  a  ground  for  divorce,  267. 

Liability  for  torts,  557. 

Responsibility  for  crime,  557. 

DURESS, 

Effect  on  validity  of  marriage,  10,  13,  16. 
What  constitutes,  14. 

E 

EARNINGS, 

Of  child,  rights  of  parent,  354. 

Rights  in  case  of  emancipation,  358. 
Of  ward,  rights  of  guardian,  409. 
Of  wife,  effect  of  modern  statutes,  126. 

Rights  of  husband,  124. 

Wife  as  a  sole  trader,  162. 

EDUCATION, 

Of  child,   duty  of  parent,  334. 
Of  ward,   duty  of  guardian,  410. 

EMANCIPATION, 
Of  child,  358. 

By  consent  of  parent,  359. 

By  operation  of  law,  360. 

Consideration,  revocation,  363. 

Effect,  578. 

Estoppel  of  parent,  362.  , 

Rights  of  parent's  creditors,  364. 

EMPLOYERS'  LIABILITY  ACTS, 
In  general,  633. 

ENTICING, 

Of  chiM,  action  by  parent,  384. 
Of  husband,  action  by  wife,  118. 
Of  servant,  action  by  master,  643. 
Of  wife,  action  by  husband,  113. 

ENTIRETY,  ESTATE  BY, 

In  general,  146. 
EQUITY, 

Jurisdiction  over  wife's  statutory  separate  estate,  212. 

Jurisdiction  to  annul  marriage,  59. 

Wife  as  a  sole  trader  in  equity,  162. 
TIFF.P.&  D.REL.(3o  ED.)— 48 


754  INDEX 

[The  figures  refer  to  pa«e>] 

EQUITY— Continued, 

Wife's  equitable  separate  estate,  185. 

Power  of  disposition,  187. 

Power  to  charge  by  contract,  189. 
Wife's  equity  to  a  settlement,  135. 

ERROR, 

See  Mistake. 

ESTATE  BY  THE  ENTIRETY, 
In  general,  146. 

ESTOPPEL, 

Agency  of  wife  for  husband,  170. 

Of  parent  to  claim  services  and  earnings  of  child,  362. 
EVIDENCE, 

Of  illegitimacy,  presumptions,  295. 

Of  marriage,  presumptions,  49-53,  61. 

EXECUTORS  AND  ADMINISTRATORS, 

Husband  as  administrator  of  wife's  estate,  138. 


FALSE  IMPRISONMENT, 
Of  wife  by  husband,  78. 

FELLOW  SERVANTS, 

See  Master  and  Servant 

FOREIGNERS, 
See  Aliens. 

FOREIGN  GUARDIANS, 
Powers,  441. 

FORMALITIES, 

In  the  celebration  of  marriage,  36. 

FRAUD, 

Effect  on  validity  of  marriage,  9-12,  16. 
Liability  for,  see  Torts. 

FRAUDS,   STATUTE   OF,      • 

Contracts  in  consideration  of  marriage,  226, 
Contracts  of  hiring,  579. 

FUNERAL  EXPENSES, 

Of  wife,  liability  of  husband,  182, 


GIFTS, 

Antenuptial    and   postnuptial    settlements   between   husband   and   wife, 

214,  229. 

By  child  to  parent,  387. 
By  husband  to  wife,  229. 
By  parent  to  child,  390. 
By  ward  to  guardian,  446. 
By  wife  to  husband,  164,  1G6. 


INDEX  755 

[The  figures  refer  to  pages] 

GUARDIAN  AND  WARD, 

Appointment   of   guardian,  403. 
Jurisdiction  to  appoint,  406. 
Who  may  or  will  be  appointed,  405. 
Bonds,  456. 

Classification  of  guardians,  394. 
Chancery  guardians,  399. 
Guardians  ad  litem,  402,  468. 
Guardians  in  socage,  396. 

Guardians  of  persons  non  compotes  mentis,  402,  535. 
Natural  guardians,  395. 
Quasi  guardians,  401. 
Statutory   guardians,  400. 
Testamentary  guardians,  398. 
Compensation  of  guardian,  445. 
Enforcement    of   guardian's   liability,   455. 
Foreign  and  ancillary  guardians,  441. 
Gifts  from  ward,  446. 
Inventory  and  accounts,  443. 

Rights,  duties,  and  liabilities  of  guardians,  408-449. 
Action  for  injuries  to  ward,  409. 
Change  of  ward's  domicile  by  guardian,  416. 
Custody  of  ward,  408. 
Maintenance  and  education  of  ward,  410. 

Contracts  of  guardian  on  behalf  of  ward,  410. 
Liability  for  necessaries  furnished  ward,  410. 
Use  of  principal  of  estate,  414. 
Management  of  estate  by  guardian,  418-441. 
Actions  by  guardian,  427. 
Acts  of  guardian  in  excess  of  authority,  424. 
•    Care  of  real  estate,  436. 

Collection  and  protection  of  property,  427. 
Degree  of  care  required,  425. 
Guardianship  as  a  trust,  418-424. 

Custody  and  deposit  of  ward's  funds,  421. 

Personal  advantage  from  use  of  ward's  property,  421. 

Purchase  by  guardian  on  sale  of  ward's  property,  419. 

Rights  of  purchasers  from  guardian,  420. 
Right  of  ward  to  follow  the  trust  property,  422. 
Investments,  431. 

Power  to  execute  instruments,  441. 
Sale  of  personal  property,  440. 
Sale  of  real  estate,  437. 
Ward's  services  and  earnings,  409. 
Settlements  out  of  court,  446. 
Termination  of  guardianship,  450. 
Death  of  guardian,  450. 
Death  of  ward,  450. 
Majority  of  ward,  450. 
Marriage  of  female  guardian,  451. 
Marriage  of  ward,  451. 
Removal,  452. 
Resignation,  452. 


756  INDEX 

[The  figures  refer  to  page*] 

H 

HARBORING, 

Of  child,  action  by  parent,  384. 
Of  servant,  action  by  master,  643. 
Of  wife,  action  by  husband,  113. 

HIRING, 

See  Master  and  Servant. 

HUSBAND  AND  WIFE, 

Agreements  of  separation,  238. 
Antenuptial  settlements  and  contracts,  214. 
Marriage  as  a  consideration,  218. 
Reasonableness  of  provisions,  223. 
Settlements  based  on  antenuptial  contracts,  225. 
Statute  of  frauds,  226. 
Validity  as  to  creditors,  221. 

Contracts,  conveyances,  and  quasi  contractual  obligations,  156  et  seq. 
Contracts  by  wife  as  husband's  agent,  168-181. 
Agency  by  estoppel,  170. 
Husband's  liability  for  necessaries  furnished  wife,   168-181. 

What  are  necessaries,  179. 
Contracts  of  husband,  168. 
Contracts  of  wife  at  common  law,  156. 
Effect  of  modern  statutes,  159,  203. 
In  equity,  159,  189. 

New  promise  after  death  of  husband  or  divorce,  157. 
Conveyances,  sales,  and  gifts  by  wife,  164. 
In  equity,  166,  189. 
Mode  of  conveyance,  167. 
Under  modern  statutes,  166,  203. 
Wife  as  a  sole  trader,  127,  143,  162. 

Effect  of  modern  statutes,  163. 
Divorce  or  judicial   separation,   241-292. 

Causes  for  which  divorce  may  be  granted,  247,  273. 
Defenses,  273-287. 
Jurisdiction  to  grant,  243. 

Extraterritorial  effect  of  decree,  287. 
Husband's  liability  for  wife's  antenuptial  debts,  183. 
Husband's  liability  for  wife's  funeral  expenses,  182. 
Legislative  divorce,  291. 

Persons  of  spouses  as  affected  by  coverture,  75-123. 
Correction  or  chastisement  of  wife,  80. 
Crimes  as  between  husband  and  wife,  93. 
Crimes  of  wife,  90. 
Duty  to  support  wife  and  family,  80. 
Contracts  of  wife  for  support,  83. 
Joint  liability  of  husband  and  wife,  84. 

Which  are  family  expenses,  86. 
Proceedings  to  compel  support,  82. 
Wife's  duty  to  support  husband,  87. 
Liability,  of  husband  for  torts  of  wife,  95. 


INDEX  757 

[The  figures  refer  to  pages] 

HUSBAND  AND  WIFE— Continued, 

As  affected  by  modern  statutes,  100. 

Torts  arising  out  of  contracts,  99. 
Restraint  of  wife,  78. 
Right  of  action  for  criminal  conversation,  120-123. 

Action  by  husband,   118. 

Action  by  wife,  122. 

Right  of  action  for  enticing,  harboring,  and  alienation  of  affection, 
113-119. 

Action  "by  husband,  113. 

Action  by  wife,  118. 
Right  to  cohabitation  and  intercourse,  75. 

Desertion  as  a  ground  for  divorce,  258. 

Justification  for  leaving  spouse,  77. 

Suits  for  restitution  of  conjugal  rights,  76. 
Right  to  determine  family  domicile,  88. 

Refusal  of  wife  to  follow  husband,  88. 

Right  of  wife  to  acquire  domicile  for  divorce,  89. 
Torts  against  wife,  107-112. 

Injury  to  husband,  action  by  husband  alone,  110. 

Injury  to  wife,  joint  action,  108. 
Torts  as  between  husband  and  wife,  105. 

Effect  of  modern  statutes,  106. 

Postnuptial  settlements  and  contracts,  at  common  law,  229. 
As  against  creditors  and  purchasers,  235. 
In  equity,  230. 

Rights  as  to  children,  see  Parent  and  Child. 
Rights  in  property  as  affected  by  coverture,  124-155. 
Administration  by  husband  of  wife's  estate,  138. 
Community  property,  150. 
Estates  by  the  entirety,  146. 
Modification  of  common  law  rules,  143. 
Wife's  chattels  real,  139. 
Wife's  choses  in  action,  131. 

Reduction  to  possession  by  husband,  133. 

Wife's  equity  to  a  settlement,  131,  135. 
Wife's  earnings,  124. 
Wife's  estates  for  life,  142. 
Wife's  estates  of  inheritance,  140. 

Husband's  curtesy,  140. 
Wife's  personalty  in  possession,  128. 

Paraphernalia,  130. 
Wife's  rights  in  husband's  property,  144,  145. 

Dower,  144. 

Thirds,  145. 

Wife's  equitable  separate  estate,  143,  185. 
Power  of  disposition,  187. 
Power  to  charge  by  contract,  189. 
Wife's  statutory  separate  estate,  144,  192. 
Conflict  of  laws,  198. 
Constitutionality   of  statutes,  195. 
Construction  and  effect  of  statutes,  194,  195. 


758  INDEX 

[The  figures  refer  to  pages] 

HUSBAND  AND  WIFE— Continued, 

Retrospective  operation,  195. 

Distinguished  from  equitable  separate  estate,  194. 
Management  and  control,  201. 
Power  of  disposition,  202. 
Power  to  charge  by  contract,  203. 

For  debts  of  husband,  209. 
What  constitutes,  198. 

See  Marriage. 

I 
IDIOTS, 

See  Insane  Persons. 

ILLEGITIMATE  CHILDREN, 
See  Bastards. 

IMBECILES, 

See  Insane  Persons. 
IMPOTENCE, 

As  ground  for  divorce,  271. 

Effect  on  validity  of  marriage,  29. 

INDEPENDENT  CONTRACTORS, 
Distinguished  from  servants,  652. 
Liability  of  employer  for  acts  and  omissions  of,  652, 

INDIANS, 

Marriage  of,  54. 

Marriage  with  white  person,  30. 

INFANTS, 

Age  of  majority,  460. 
Capacity  to  hold  office,  467. 
Capacity  to  make  a  will,  467. 
Capacity  to  sue  and  defend,  468. 

Guardian  ad  litem,  402. 
Competency  as  witnesses,  470. 
Contracts  of  infants,  471-519. 

Contracts  for  necessaries,  480. 

What   are  necessaries,   483. 
Ratification  and  disaffirmance,  488. 

Effect  of  ratification  or  disaffirmance,  514. 
Extent  of  ratification  or  disaffirmance,  507. 
Return  of  consideration,  508. 
Time  of  avoidance,  491. 
What  constitutes  a  disaffirmance,  505. 
What  constitutes  a  ratification,  497. 
Who  may  avoid,  495. 
Valid  contracts,  477. 
Void  and  voidable  contracts,  472. 
Custody  and  protection,  461. 
Disabilities  in  general,  465. 

Removal  of  disabilities,  518. 
Emancipation,  see  Parent  and  Child, 
Guardianship,  see  Guardian  and  Ward. 


INDEX  759 

[The  figures  refer  to  pages] 

INFANTS— Continued, 

Liability  of  infants  for  torts,  523. 

Torts  connected  with  contract,  525. 
Liability  of  parent  for  acts  of,  see  Parent  and  Child. 
Marriage  of  infants,  21. 

Construction   of   statutes,   66. 
"  Privileges  and  disabilities  in  general,  465. 
Responsibility  for  crime,  529. 
Rights,  duties,  and  liabilities  of  parents  and  of  children,  see  Parent  and 

Chiia. 

Torts  against  infants,  action  by  infant,  520. 
Action  by  parent,  see  Parent  and  Child, 

INFORMAL  MARRIAGE, 

In  general,  40. 

INQUISITION, 

To  determine  sanity  or  insanity,  534. 

INSANE  PERSONS, 

Capacity  to  make  a  will,  552. 
Contracts   of  insane  persons,   537. 

Avoidance  as  to  third  persons,  545. 

For  necessaries,  540. 

Ignorance  and  good  faith  of  the  other  party,  541. 

Insane  persons  under  guardianship,  542. 

Ratification  and  avoidance  of  contracts,  543. 

Return  of  consideration,  544. 

Valid  contracts,  quasi  contracts,  540. 

Void  or  voidable,  539. 
Custody  and  support,  536. 
Guardianship  of  insane  persons,  402,  535. 
Insanity  defined,  various  kinds,  532. 
Liability  for  torts,  546. 
Marriage  of,  17. 

Mode  of  ascertaining  insanity,  534. 
Responsibility  for  crime,  548. 

Inability  to  distinguish  between  right  and  wrong,  549. 

Insane  delusions,  549. 

Insanity  after  commission  of  crime,  551. 

Irresistible  impulse,  550. 

Moral  and  emotional  insanity,  551. 

INSANITY, 

As  ground  for  divorce,  270. 

Defined,  532. 

See  Insane  Persons. 
INTERCOURSE, 

Rights  of  husband  and  wife,  75. 

INTOXICATING  LIQUORS, 

Furnishing  liquor  to  child,  378. 

INTOXICATION, 

As  ground  for  divorce,  267. 

Effect  on  validity  of  marriage,  17,  20. 

Status  of  intoxicated  persons  generally,  see  Drunken  Persons. 


760  INDEX 

[The  figures  refer  to  pages] 


JURISDICTION, 

To  annul  marriage,  59. 
To  appoint  guardian,  406. 
To  grant  divorce,  243. 

> 
L 

LARCENY, 

By  wife  or  husband  from  other  spouse,  93. 
LAWS, 

See  Statutes. 

LEGISLATIVE  DIVORCE, 

Not  unconstitutional,  3,  291. 

LEGISLATURE, 

Power  to  regulate  and  control  marriage,  6. 

LEGITIMACY, 

Of  children,  293-304. 

As  affected  by  validity  of  marriage,  31. 
Conflict  of  laws,  303. 
Evidence  of  legitimacy,  295. 

Presumption,  295. 

Illegitimate  children,  see  Bastards. 
Legitimation  by  acknowledgment,  300. 
Legitimation  by  marriage,  300. 
LIBEL, 

Of  servant  by  master,  601. 

See  Torts. 
LICENSE, 

To  marry,  necessity,  37,  65. 

LIFE  ESTATE, 

Husband's  rights  in  wife's  life  estate,  142. 
LOCO  PARENTIS, 

Rights  and  duties  of  persons  standing  in  loco  parentis,  319. 

LUNATICS, 

See  Insane  Persons. 

M 

MAINTENANCE, 
Of  bastards,  306. 
Of  child  by  parent,  321. 
Of  parent  by  child,  392. 
Of  ward  by  guardian,  410. 
Of  wife  by  husband,  168. 

MARRIAGE, 

Agreement  to  marry,  4. 

Annulment  and  avoidance  of  marriage,  55. 

Jurisdiction,  59. 

As  a  consideration  for  antenuptial  contract,  218. 
As  a  status,  4. 


INDEX  761 

[The  figures  refer  to  page*] 

MAKE  I  AGE — Continued, 

Between  Indians  in  tribal  relations,  54. 

By  proxy,  54. 

Common  law  marriages,  40. 

Conflict  of  laws,  67. 

Defined,  2. 

Distinguished  from  contract,  2-5. 

Effect  of  marriage,  see  Husband  and  Wife. 

Essentials  of  marriage,  6-36. 

Capacity  of  parties  otherwise  than  mentally,  25-36. 

Civil  conditions,  race,  etc.,  30. 

Consent  of  parents,  37,  66. 

Construction  of  statutory  provisions,  37,  65. 

Effect  of  statutory  requirements,  36,  65. 

Formalities  in  celebration  of  marriage,  36-55. 

Informal  marriages,  36-44. 

Insanity,  17. 

Intoxication,  17,  20. 

License,  37,  65. 

Mental  incapacity,  17-25. 

Mutual  consent,  7. 
Duress,  10,  13, 16. 
Error  or  mistake,  10, 15, 16. 
Fraud,  9-12. 
Marriage  in  jest,  8. 

Nonage,  21. 

Physical  incapacity  or  impotence,  29. 

Prior  marriage,  31. 

Publication  of  banns,  37,  65. 

Qualification  of  person  performing  ceremony,  37,  65. 

Relationship,  consanguinity,  and  affinity,  ~25. 

Registration,  37. 
Evidence  of,  49. 

Presumption  and  burden  of  proof  as  to  marriage,  49,  52,  61. 
Indian  marriages,  54. 

Legislation  impairing  obligation  of,  3,  291. 
Legitimation  of  children  by  subsequent  marriage,  300. 
Of  female  guardian,  effect  on  guardianship,  451. 
Of  ward,  effect  on  guardianship,  451. 
Power  of  Legislature  to  validate  marriages,  60. 
Regulation  and  control,  6. 

Restrictions  on  right  to  marry  after  divorce,  34,  71. 
Slave  marriages,  31. 

MARRIAGE  SETTLEMENTS, 
See  Husband  and  Wife. 

MARRIED  WOMEN, 

See  Husband  and  Wife. 

MASTER  AND  SERVANT, 
Apprentices,  571. 
Creation  of  the  relation,  574, 
Implied  contract,  576. 


DCDBX  75? 

--,._-  __..   .   ;. ..  _.  _ _.. 

MASTER  AND  SERVANT— continued. 

Criminal  or  immoral  contact,  599. 

Dta  --r-i- •:.:-. 

ir. 


I~;  -"'   :     '-..  -'•  •:  -      >:-;-?    ~  .:1 


N   -  •:-  -     :    •    -:>    -> 
of  coo  tract  bj  agreaMBt,  581. 
of  contmct  by  ncEfionMBOBs  SB5L 
Happening  of  conditions  sofaeeqaent.  3B& 
Lmpoesibflity  of  paf  ormuKe,  38R. 

MENTAL    CAPACITY. 

See  Drunken  Persons;    Tnfints;    Insane  Persona. 

MINORS. 

See  Infants;  Parent  and  ChDd. 

MISCEGENATION. 

Prohibited  marriages  between  races,  30. 
MISTAKE, 

Effect  on  validity  of  marriage,  10,  15,  16. 

MUTUAL  CONSENT, 
To  marriage.  7. 

N 

NATURAL  CHILD, 
See  Bastards. 

NATURAL  GUARDIANS, 
Defined,  395. 

NATURALIZATION, 
Of  aliens. 


NECESSARIES. 

Famished  child,  liability  of  parent  32L 
Furnished  wtfrd.  liability  of  guardian,  410. 
Furnished  wife,  liability  of  husband.  168. 

What  are  necessaries,  179. 
Liability  of  drunken  persons,  555. 
Liability  of  infants.  480. 
Liability  of  insane  persons,  540. 

NEGLIGENCE, 

See  Master  and  Servant;   Torts. 

NEGRO. 

Marriage  with  white  person,  30. 

vGE. 
See  Infante. 

NON  COMPOS  MENTIS, 

See  Drunken  Persons;  Insane  Persona. 

NONSUPPORT. 

As  ground  for  divorce,  2TO. 


764  INDEX 

[The  figures  refer  to  pages] 

o 

OFFICERS, 

Capacity  of  Infant  to  hold  office,  467. 


PARAPHERNALIA, 
Of  wife,  130. 

PARENT  AND  CHILD, 

Adoption  of  children,  310. 

Agreements  to  adopt,  319. 
Descent  and  distribution,  316. 

What  law  governs,  320. 
Effect  of  invalid  adoption,  319. 
Persons  standing  in  loco  parentis,  319. 
Proceedings  to  adopt,  311. 
Status  of  adoptive  parent  and  child,  314. 
What  law  governs,  320. 
Duties  and  liabilities  of  parents,  321-338. 

Contracts  by  child  as  parent's  agent,  331. 
Duty  to  educate  child,  334. 
Duty  to  maintain  child,  321. 

Liability  for  necessaries  furnished  child,  321. 
Maintenance  in  equity,  allowance  from  child's  estate,  329. 
Neglect  to  support  as  an  offense,  328. 
Duty  to  protect  child,  333. 
Liability  for  child's  crimes,  338. 
Liability  for  child's  torts,  334. 
Legitimacy  of  children,  293-304. 
Conflict  of  laws,  303. 
Evidence  of  illegitimacy,  295. 

Presumption,  295. 

Legitimation  by  acknowledgment,  300. 
Legitimation  by  marriage,  300. 
Status  of  illegitimate  children,  304. 
Custody,  305. 

Descent  and  distribution,  307. 
Domicile,  305. 

Support  and  maintenance,  306. 

Liability  of  parent  for  enticing  or  harboring  married  child,  116. 
Rights  of  parent  and  of  child,  339-393. 

Abducting,  enticing,  or  harboring  child,  parent's  right  of  action,  384.. 
Advancements  by  parent  to  child,  390. 
Correction  of  child,  340. 
Custody  of  child,  343. 

Agreements  as  to  custody,  352. 
In  cases  of  divorce,  350. 
Domicile  of  child,  392. 
Duty  of  child  to  support  parent,  392. 
Emancipation  of  children,  358-365. 
By  consent  of  parent,  359. 


INDEX  765 

[The  figures  refer  to  pages] 

PARENT  AND   CHILD— Continued, 

By  operation  of  law,  360. 

Consideration,  revocation,  363. 

Effect  in  general,  518. 

Estoppel  of  parent,  362. 

Rights  of  parent's  creditors,  364. 

Gifts,  conveyances,  and  contracts  between  parent  and  child,  387. 
Injury  to  child,  parent's  right  of  action,  365-378. 

Adult  children,  375. 

Expenses  incurred  by  reason  of  the  injury,  369. 

Furnishing  liquor  to  child,  378. 

Loss  of  services  of  child,  367. 

Necessity  to  show  loss  of  services,  369. 

Other  elements  of  damage,  374. 

Remote  and  proximate  cause,  375. 

Who  may  sue,  376. 

Wrongful   death,   right   of  action,   376. 
Marriage  of  infants,  21. 

Consent  of  parent,  37,  66. 
Parent's  rights  in  child's  property,  386. 
Right  to  child's  services  and  earnings,  354. 

Seduction  or  debauching  of  daughter,  parent's  right  of  action,  378. 
Status  of  infants,  see  Infants. 

PARTIES, 

Infants  as  parties  to  actions,  468. 

PERSONAL  INJURIES, 

See  Husband  and  Wife;  Master  and  Servant;  Parent  and  Child. 

PHYSICAL  CAPACITY, 
To  marry,  29. 

POSTNUPTIAL   SETTLEMENTS, 

Between  husband  and  wife,  at  common  law,  229. 
In  equity,  229. 
Right  of  creditors  and  purchasers,  235. 

PRESUMPTIONS, 

As  to  marriage  and  legitimacy  of  children,  61,  295. 
Of  divorce  from  or  death  of  former  spouse,  62. 
Of  marriage  in  general,  49-53. 

PRINCIPAL  AND  AGENT, 

Child  as  parent's  agent,  331.  , 

Wife  as  husband's  agent,  168. 
See  Master  and  Servant. 

PRIOR  MARRIAGE, 

Effect  on  validity  of  marriage,  31. 

PROXY, 

Marriage  by  proxy,  54. 


766  INDEX 

[Tte  figures  refer  to  page*] 

QUASI  CONTRACT, 

See  Contracts  and  Quasi  Contracts. 

QUASI    QUAUDIANS, 
Defined,  401. 

See  Guardian  and  Ward. 

R 

RACE, 

Prohibited  marriage  between  races,  30. 
RAPE, 

Husband  as  accessory,  94. 

RATIFICATION, 

Of  agency  of  wife,  171. 

Of  contract  by  infant,  488,  497. 

Of  voidable  marriage,  16,  20. 

RECRIMINATION, 

As  a  defense  in  a  suit  for  divorce,  281. 

•REDUCTION  TO  POSSESSION, 

Of  wife's  choses  in  action  by  husband,  133. 

REGISTRATION, 
Of  marriage,  37. 

RELATIONSHIP, 

Effect  on  validity  of  marriage,  25. 

REMOVAL, 

Of  guardian,  452. 

RESIDENCE, 
See  Domicile. 

REPUTE, 

As  evidence  of  marriage,  49. 

RESIGNATION, 

Of  guardian,  452. 

RESPONDEAT  SUPERIOR, 

Master's  liability  for  acts  or  omissions  of  servant,  645. 
RESTITUTION, 

Of  conjugal  rights,  suits  for,  76. 
RESTRAINT, 

Of  wife  by  husband,  78. 

REVOCATION, 

Of  emancipation  of  child,  363. 

S 
SEDUCTION, 

Of  daughter,  artion  by  parent.  378. 
Of  wife,  action  by  husband,  118. 


INDEX  767 

[The  figures  refer  to  pages] 

SEPARATE  ESTATE, 

Wife's  equitable  separate  estate,  143,  185. 
Wife's  statutory  separate  estate,  144,  192. 

Equitable  and  statutory  separate  estates  distinguished,  194. 

Management  and  control,  201. 

Power  to  charge,  203. 

Power  to  convey,  202. 

What  constitutes,  198. 

SEPARATION, 

Judicial  separation,  see  Divorce. 

Separation  agreements  between  husband  and  wife,  238. 

SERVANTS, 

See  Master  and  Servant. 

SERVICES, 

Of  child,  rights  of  parent,«354. 
Of  ward,  rights  of  guardian,  409. 
Of  wife,  rights  of  husband,  124. 
See  Master  and  Servant. 

SLANDER, 

Of  servant  by  master,  601. 
See  Torts. 

SLAVES, 

Marriage  of,  31. 

No  slavery  in  the  United  States,  571. 
SOCAGE, 

Guardians  in  socage,  396. 

See  Guardian  and  Ward. 

SOLE  TRADER, 

Wife  as  a  sole  trader,  127,  143,  162. 
Effect  of  modern  statutes,  163. 

STATES, 

Power  of  Legislature  to  grant  divorces,  291. 
Power  of  Legislature  to  validate  marriages,  60. 

STATUTE  OF  FRAUDS, 
See  Frauds,  Statute  of. 

STATUTES, 

Effect  of  statutory  requirements  as  to  marriage,  37. 

Legislative  divorces,  3,  291. 

Married  women's  property  acts,  192-213. 

Power  of  Legislature  to  validate  marriage,  60. 

Relating  to  marriage,  construction,  65. 

SUPPORT, 

Contract  of  wife,  83. 

Duty  of  wife  to  support  husband,  87. 

Family  expenses,  86. 

Joint  liability  of  husband  and  wife,  84. 

Of  wife  by  husband,  80. 

Proceedings  to  compel  support,  82. 

See  Guardian  and  Ward ;  Husband  and  Wife ;  Parent  and  Child. 


768  INDEX 

[The  figures  refer  to  pages] 


TESTAMENTARY  GUARDIANS, 
Defined,  398. 

See  Guardian  and  Ward. 

TORTS, 

Action  by  guardian  for  Injuries  to  ward,  409. 

Action  by  husband  for  alienating  affections  of  wife,  113. 

Action  by  husband  for  enticing  or  harboring  wife,  113. 

Action  by  infant  for  tort,  520. 

Action  by  master  for  injuries  to  servant,  642. 

Action  by  parent  for  abducting,  enticing,  or  harboring  child,  384. 

Action  by  parent  for  injuries  to  child,  365. 

Action  by  parent  for  seduction  or  debauching  of  daughter,  378. 

Action  by  servant  for  causing  his  discharge,  644. 

Action  by  wife  for  alienating  affections  of  husband,  118. 

Action  by  wife  for  enticing  or  harboring  husband,  118. 

Actions  for  criminal  conversation,  118. 

Against  wife,  107-112. 

As  between  husband  and  wife,  105. 

Effect  of  modern  statutes,  106. 
Husband's  liability  for  torts  of  wife,  95. 

As  affected  by  modern  statutes,  100. 

Torts  arising  out  of  contracts,  99. 
Liability  of  drunken  persons,  557. 
Liability  of 'infants,  523. 
Liability  of  insane  persons,  546. 
Liability  of  married  women,  95. 

As  affected  by  modern  statutes,  100. 

Torts  arising  out  of  contracts,  99. 
Liability  of  master  for  torts  of  servant,  646. 
Liability  of  master  to  servant  for  negligence,  606. 
Liability  of  parent  for  torts  of  child,  334. 
Liability  of  servant  for  his  own  torts,  655. 

TRESPASS, 
See  Torts. 


VOID  AND  VOIDABLE  CONTRACTS, 
See  Contracts. 

VOID  AND  VOIDABLE  MARRIAGES, 
See  Marriage, 

w 

WAGES, 

See  Master  and  Servant 

WARD, 

See  Guardian  and  Ward. 


INDEX  769 

[The  figures  refer  to  pages] 

WILLS, 

Of  drunken  persons,  559. 

Of  infants,  467. 

Of  insane  persons,  552. 

WITNESSES, 

Competency  of  infants,  470. 

WORKMEN'S  COMPENSATION  ACTS, 
In  general,  635. 

Abrogation  of  common  law  defenses,  638. 
Injuries  arising  out  of  and  in  course  of  employment,  639. 
Persons  to  whom  acts  apply,  638. 
Willful  misconduct,  641. 

WRONGS, 

See  Torts. 

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